C.V. Raran and Another vs K.T. Kandan and Others

Sundaram Chetty, J.—This revision petition has been filed by two of the plaintiffs (decree-holders) u/s 145, Civil Procedure Code, for the

enforcement of the security bond executed by certain sureties, whereby three items of immovable property were hypothecated in respect of a

certain amount drawn by the next friend of the minor plaintiffs on their behalf. Under the security bond, the properties would be liable for any claim

of the minors as against their next friend in respect of the money drawn by the latter and not properly accounted for. The security bond is evidently

one executed under Order 32, Rule 6, Civil Procedure Code. The Court allowed the next friend to draw the .decree amount after the aforesaid

security was furnished. This security bond is not executed in favour of any named officer of the Court. In the absence of any specific description

indicating the person in whose favour the security bond is executed, it must be deemed according to the trend of this document, that it is one

executed in favour of the Court. The Lower Court held following the decision in Kurngodappa v. Soogamma ILR (1917) Mad. 40, that this

security bond is not enforceable u/s 145, Civil Procedure Code. In the first place, unless the sureties have made themselves personally liable for

any amount, they could not be proceeded against in execution by applying Section 145. There is another reason in the present case for holding that

Section 145 is not applicable. It is only when a person has become liable as surety for the performance of any decree, or for the restitution of any

property taken in execution of a decree, or for the payment of any money, or for the fulfilment of any condition imposed on any person, under an

order of the Court in any suit or in any proceeding consequent thereon, that the Court can order execution against such a person. In the present

case, none of these requisites is satisfied. The question is between the minor plaintiffs on the one hand and their next friend on the other, in respect

of the money drawn by the next friend on their behalf. This matter is not connected with the execution of the decree; nor is it a question between

the parties to the suit. That being so, the application u/s 145 for the enforcement of the security bond is clearly unsustainable.

The next question is, what is the remedy open to the petitioners for the realisation of the amount due to them from their guardian ? The Lower

Court seems to be of opinion that their remedy is only by a separate suit. In order to enable them to realise the amount due to them by the sale of

the properties by means of a separate suit, an assignment of the aforesaid bond in their favour is necessary. The nature of the security bond has

already been referred to. In the case of a bond like this, their Lordships of the Privy Council have held in Raj Raghubar Singh v. Jai Indra Bahadur

Singh (1919) L.R. 46 LA. 228 : ILR 42 All. 158 : (1919) 38 M.L.J. 302 (P.C.) that the Court not being a juridical person cannot take property

and consequently cannot assign any security bond executed in its favour. It is observed that where there is an unquestioned liability, there must be

some mode of enforcing it and the only mode of enforcing it must be by the Court making an order in the suit upon an application to which the

sureties are parties, and then the properties charged can be sold for the realisation, of the amount due. This, according to their Lordships, would be

the proper procedure and although there is no specific provision in the Civil Procedure Code, the security bond has to be enforced by the Court in

the exercise of its inherent powers. On the authority of this ruling, we can hold that, upon the present application by the petitioners, the Court may

order the sale of the properties mentioned in the security bond, if the liability of the guardian is an unquestioned one. The difficulty in this case is,

that no order for the sale of the properties offered as security can be made without determining the extent of the guardian''s liability and the amount

which the petitioners would be legitimately entitled to claim from him. Is the Court competent to make such an enquiry and give a finding on this

point on the present application? As we have already observed, this is not a matter relating to execution, discharge or satisfaction of the decree, in

which case, u/s 47, Civil Procedure Code, the Court would be justified in making an enquiry. Any order; for the sale of the properties on an

application like this would be premature, till the question relating to the liability of the next friend is determined. For that purpose, the petitioners

have only to file a separate suit. It may be a suit for an account or for a declaration of the extent of the guardian''s liability. On the strength of a

declaration so obtained, the petitioners, in order to realise the amount found due to them, have to come up to the Court to which the security bond

was given and apply for an order directing the sale of those properties for the realisation of that amount. We cannot express any definite opinion on

the question, whether a suit of that kind, if instituted, will be barred by limitation or not. All that we can say is, that the petitioners may invoke for

their aid Section 14 of the Limitation Act for the exclusion of the time occupied in the prosecution of the present application, and the Court trying

the suit will have to decide whether such exclusion is permissible or not. With these observations we dismiss this petition with costs.