Bhajan Singh vs Gurnam Singh and others

D.V. Sehgal, J.—This revision petition is directed against an order dated 5.1.1987 passed by the learned Sub Judge 1st Class, Phagwara. The facts culminating to this order are that the decree-holder/Respondents filed a suit for possession of land measuring 275 Kanals 2 Marlas situated in village Sunra Rajputan Tehsil Phagwara against one Shri Jagjit Singh Rosha. During the pendency of the said suit, an application was made by the Defendant for stay of its proceedings on the ground that the subject-matter of the dispute was pending adjudication in an appeal in this Court against judgment and decree dated 23.1.1974. The trial Court required the Defendant to furnish the security for mesne profits to the extent of Rs. 1,00,000/-before any order staying the proceedings could be passed. The Petitioner stood surety for the Defendant. The surety bond for Rs. 1,00,000/-was tendered in the Court. The same was accepted and attested by it. Thus, the proceedings in the suit were stayed and the file was consigned to the record

The Letters Patent Appeal of the Defendant pending in this Court was decided on 26 7.1984 whereafter the Respondents made an application in the trial court for restoration of the suit and for grant of a decree for possession of the suit land. They also prayed that the surety bond furnished by the Petitioner should be enforced and the amount of Rs. 1,00,000/- should be recovered from 6 Acres of land belonging to him situated in village Nangal Majja.

The suit of the Respondents was restored and the same was decreed by the trial court on 24.12.1986. The order dated 5.1.1987 which is impugned in the present revision petition by the Petitioner was passed for enforcing the surety bond. The order is to the effect that warrants for sale of land measuring 6 Acres belonging to the Petitioner should be issued.

The contention of the learned Counsel for the Petitioner is that before the surety bond for mesne profits could be enforced, it was incumbent on the Executing Court to determine the mesne profits due from the judgment debtor to the Respondents herein. That has Dot been done. Mr. Punia, learned Counsel appearing for the Respondents submits that the surety bond is being enforced in accordance with the provisions of Section 145 of the Code of Civil Procedure.

Having heard the learned Counsel for the parties, I am of the considered view that the surety furnished by the Petitioner being for mesne profits in respect of the suit land, it was necessary first to deter- mine the quantum of mesne profits and if they exceed Rs. 1,00,000/-, the whole of the surety bond could be enforced and the amount realised from the property of the Petitioner. If, however, the amount of mesne profits is Jess than Rs. 1,00,000/-, recovery of the amount to that extent could be ordered. It has been brought to my notice that the judgment debtor has not even been impleaded as a party to the application which has been allowed vide order under revision. For determination of the mesne profits, it was necessary to hear the judgment debtor also because as a result of determination of the quantum of the same, he would be the principal party liable to pay the amount thereof and the Petitioner as a surety would be liable for payment to the extent of surety furnished by him. Since, as is evident from the order of the trial Court, the quantum of mesne profits has not been determined, I direct the trial Court to do so now. The order under revision cannot be sustained without determination

Consequently, I allow this revision petition, set aside the impugned order dated 5.1.1987 and direct the trial Court to determine the mesne profits in respect of the land in dispute to which the Respondents are entitled after allowing due opportunity to the judgment debtor as also the Petitioner and then proceed to enforce the surety bond.

The parties through their counsel are directed to appear before the learned trial Court on November 28, 1988 when further proceedings in accordance with law shall be taken. No costs.