Jagdam Prosad Singh vs Satya Bhusan Mukherjee

S.R. Das Gupta, J.—This appeal, in our opinion, should be allowed. The Appellant before us was the surety and he filed an objection to the execution of the decree. The said objection was overruled by the learned Judge and it is against that decision that the present appeal has been preferred.

The position is this: There: was a suit filed by the decree-holder against a number of Defendants. One of those Defendants was Sm. Krishna Kumari Singh. She was Defendant No. 1 in the suit. An application was made for attachment before judgment of the brick field of the said Defendant Sm. Krishna Kumari Singh. In the said proceedings the Appellant stood surety for the said Defendant and executed a surety bond in favour of the presiding Judge of the court and his successors declaring and agreeing "that in case the decretal dues including "costs to be passed in the suit against the Defendant owner of the "brick field be not fully realised from the said Defendant in "execution thereof," he shall pay the same up to Rs. 4,500 and in default the decree-holder will be entitled to realise the same by levying execution on his movable and immovable properties and on his person. On March 20, 1944, a decree was passeld against the Defendants including the Defendant No. 1 for Rs. 3,117-15-6. On August 30, 1944, the pleader for the decree-holder served a notice on the Appellant asking him to make payment of the decretal amount. It should be noted that notice was not given by the court. On March 11, 1947, the decree-holder filed a petition for execution of the said decree. The said petition was a curious one. It was no doubt made on a tabular statement, but the Appellant was described therein as the judgment-debtor, and the relief prayed for was as follows:

after service of notice after one year the execution case struck off.

The mode in which the assistance of the court was required were as follows:

(1) the prayer for realisation of the entire amount consisting of the claim under execution together with costs and (2) the execution struck off after service of notice at the end of one year upon the judgment-debtor and the surety.

It is difficult to make any sense out of the said execution petition. In any event, the decree-holder did not specifically state the manner in which the assistance of the court was required, that is to say, which property or properties was or were to be proceeded against and in what manner, etc. We find that after the said petition for execution was filed the same was registered as Title Execution Case No. 8 of 1947. The learned Judge thereupon directed notice to be issued to the judgment-debtor as well as to the surety under Order XXI, Rule 22 of the CPC fixing certain date for return and order. It appears that the matter was adjourned on a number of days because the notice on the surety was returned unserved and ultimately by his order, dated August 22, 1947, the learned Judge ordered that as the notice on the surety still returned unserved and as no further steps were taken the execution case be dismissed for default. Thereafter, a second execution case was started before the said second court of the Subordinate Judge, Howrah and that was Execution Case No. 25 of 1948. On February 17, 1949, the learned Judge again directed notice to be issued under Order XXI, Rule 22 of the CPC upon the surety fixing March 18, 1949, for return and orders. But the notice not having been received after service the learned Judge on March 18, 1949, adjourned the matter to March 21, 1949. On March 21, 1949, the said notice was found to have been served on the surety. Thereupon, the learned Subordinate Judge ordered a certificate to be issued to the Subordinate Judge, first court, Hooghly, under Order XXI, Rule 6 of the Code of Civil Procedure, for the total sum of Rs. 3,184-4-3. The said certificate, which was a certificate of non-satisfaction of the decree, was prepared and issued and thereafter the said second court of the Subordinate Judge of Howrah ordered that the execution case be disposed of. After the decree with the certificate of non-satisfaction came to the Subordinate Judge, first court, Hooghly, a fresh application for execution was made before him. Thereupon, fresh execution proceedings were started and a fresh notice was directed to be issued upon the surety. The surety, thereupon, appeared before the said court and filed an objection. Various grounds were taken in the said objection filed before the said court, but the learned Judge disallowed all the grounds and dismissed the said objection. It is against that decision that the present appeal has been filed before us.

A number of grounds have been raised before us in support of his appeal by Mr. Das Gupta on behalf of the Appellant and we consider all of those grounds to be sound. In the first place, Mr. Das Gupta contended that the order for transfer of the decree with a certificate of non-satisfaction made by the second court of the Subordinate Judge of Howrah to the Subordinate Judge, first court, Hooghly, was illegal and the said court could not proceed with the execution of the said decree. Mr. Das Gupta also contended that, in fact, the new execution proceedings were not started by the said Subordinate Judge, first court, Hooghly, but by the second Subordinate Judge''s court, Hooghly, and this he contended was wholly illegal. Mr. Das Gupta relied in the first place on Order XXI, Rule 5 of the CPC which provides as follows:

Where the court to which a decree is to be sent for execution is situate within the same district as the court which passed such decree, such court shall send the same directly to the former court. But, where the court to which the decree is to be sent for execution is situate in a different district, the court which passed it shall send it to the District Court of the district in which the decree is to be executed.

Mr. Das Gupta contended that the decree, in this case, ought to have been sent to the District Court of Hooghly and not to the Subordinate Judge, first court, Hooghly. He then referred us to Section 38 of the CPC where it is laid down that

a decree may be executed either by the court which passed it, or by the court to which it is sent for execution.

Mr. Das Gupta contended that in any event as the decree has been sent to the Subordinate Judge, first court, Hooghly, and it is that court which could execute the said decree but in this case the execution case was started by the court of the second Subordinate Judge, Hooghly. Therefore, Mr. Das Gupta submitted before us that in the circumstances the present execution proceedings could not go on. In our opinion all the contentions of Mr. Das Gupta should prevail. Order XXI, Rule 5 of the CPC makes it quite clear that if the court to which the decree is to be sent for execution is situate in a different district, it shall be sent to the District Court of that district. It cannot be sent straight to a subordinate court of that district. In the next place, Section 38 of the Code also makes it clear that the court, to which a decree has been sent for execution, can alone execute it. In this case the court to which the decree was sent for execution was the court of the Subordinate Judge, first court, Hooghly, and not to the court of the Subordinate Judge, second court, Hooghly, and, therefore, the court of the Subordinate Judge, second court, Hooghly, had no jurisdiction to proceed with this execution.

Mr. Das Gupta then contended that no notice u/s 145 of the CPC was served upon his client and it was mandatory upon the court to do so before proceeding with the execution of the decree against him. Section 145 of the CPC clearly lays down that-

When any person has become liable as surety-(a) for the performance of any decree or any part thereof, * * * * the decree*may be executed agamst him,** Provided that such notice as the court in each case thinks sufficient has been given to the surety.

Appendix H, Form No. 13, gives the form of such notice and Order XLVIII, Rule 3 of the Code lays down that the provision as to the forms given in the appendices with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned. Thus, reading these provisions of the CPC it seems to us to be clear that before execution against a person who has stood a surety for the performance of a decree can proceed, a notice has to be served upon him u/s 145 of the Code and that notice must be in the form laid down in App. H, Form No. 13, with such variation as the circumstances of each case may require. But in this case no notice u/s 145 of the Code has been served upon the Appellant. The notices which were issued to him were notices under Order XXI, Rule 22 of the Code of Civil Procedure. The learned Subordinate Judge also treated the said notices as notices under Order XXI, Rule 22 of the Code. Therefore, there can be no question that notice u/s 145 of the CPC was not served upon the Appellant. The scope of a notice under Order XXI, Rule 22 of the Code is different from that of a notice u/s 145 of the Code of Civil Procedure. What a notice under, Order XXI, Rule 22 of the Code requires is that the person served with same is to show cause as to why the decree although passed more than one year ago should not be executed against him, but the scope of a notice u/s 145 of the Code is to require the person to show cause why the decree shall not be proceeded against him as surety. It cannot, in our opinion, be contended that it would be sufficient if a notice under Order XXI, Rule 22 of the Code is served on the surety it would no longer be necessary to serve him with a notice u/s 145 of the Code. In our opinion a notice must be served u/s 145 of the CPC before execution against the surety can proceed. In this case no notice u/s 145 of the Code having been served upon the surety, the execution proceedings as against him is not maintainable.

Mr. Das Gupta also raised the question of limitation. In view of our decision on the other grounds urged by him it is hardly necessary for us to go into this question. It would be sufficient to say that this plea taken by Mr. Das Gupta is equally sound. The only question which has to be determined in order to determine whether or not this decree is barred by limitation is whether or not the execution proceedings which were started on March 11, 1947, saved the decree from being barred. As I have pointed out the execution proceeding which was started on March 11, 1947, was not at all proper execution proceeding. It is difficult to make out what the Petitioner was asking for and what assistance he was seeking from the court. Besides, the mode in which the assistance of the court was sought by the decree-holder had not been specifically stated. In the circumstances I am of opinion that the proceedings in execution started by the application dated March 11, 1947, cannot save the decree from the bar of limitation. In any event, on the other grounds, which I have indicated, this appeal must be allowed.

The result, therefore, is that the appeal is allowed. The order of the court below is set aside. The Appellant is entitled to his costs of the appeal-hearing fee being assessed at two gold mohurs.

Mallick, J.

I agree.