Dhir Narain Chand and another vs Shiva Sahay Chaudhury

Wort, J.—It is most unfortunate in this case that the two questions which arise appear to have been ignored either by the advocates in the Court below or by the Courts themselves. Both the learned Judges, that is, the Judge of first instance and the Court of appeal, state that certain questions were argued, but they arc not the ones which are argued before this Court.

The first is that at the time that the judgment-debtor was due to appear he was dead; and, if the statements contained in the evidence were correct, the matter would present a, very different aspect from what appears from the judgments of the Courts below.

The other question was, what was the surety bond? The Judges in the Courts below have treated it as a surety for payment of the debt, whereas on a plain reading of the bond it would appear that the surety undertook to have the judgment-debtor appear on the date named, and upon faillure to do so he would be liable for the amount of the debt. If, on the true construction of the surety bond, it was a surety for payment of the debt in contradistinction to an undertaking to produce the judgment-debtor on the date named, then the question of whether the judgment-debtor was dead on the date on which he was to appear would become immaterial. But if the surety bond, on its proper construction was merely an undertaking for the judgment-debtor to appear, (although the penalty may have been the amount of the debt) then the present appellants would be excused, because, although under the Hindu law the sons are liable for the father''s debts, including the debts of surety, yet an exception to that rule are cases where there are sureties for the appearance or for the honesty of a third party. There is no direct authority on this question, although from the decided cases and from the reading of the Mitakshara itself it would appear that that is the true position in law. In these circumstances it seems to me that the decision of the Court below was unsatisfactory, and the matter must go back for the determination of two questions; first, the question of fact, whether the principal debtor was dead on the date when he should have appeared before the Court on the second occasion; and, secondly, whether the bond was merely a surety for the appearance of the judgment-debtor or whether it was something more a surety for payment of the debt? If it was a surety for payment of the debt itself, then the death of the judgment-debtor was immaterial and the sons would be liable. But if it was a surety for the appearance of the judgment-debtor, then in any event the sons would not be liable because for that debt they are not liable under the Hindu law and the fact of it being found that the principal debtor was dead will be an added reason for the release of the sons from the debt of their father.

The matter will be remanded to the lower Court for decision in light of the observations made, and the costs of this appeal will depend upon the decision of the Court below.