Janakiammal (deceased) by L.R. Ramaswami Gounder (died) by widow Rajammal vs A.T. Krishnaswami Mudaliar and Others

Ganapatia Pillai, J.—This revision petition is preferred by the seventh respondent in E.P. No. 134 of 1957 in O.S. No. 226 of 1946 on the

file of the Second Additional Subordinate Judge, Coimbatore. That petition was filed by the defendants in O.S. No. 226 of 1946 under the

following circumstances. O.S. No. 226 of 1946 was laid against two defendants by the two persons for recovery of a sum of more than one lakh

of rupees. They got a decree in the first Court not for the full sum claimed, but, for a part of it. Against that decree, an appeal was preferred to this

Court, being A.S. No. 713 of 1947. That appeal was preferred by the judgment-debtors - defendants objecting to the decree passed by the

Subordinate Judge of Coimbatore. The plaintiffs in the lower Court also preferred an appeal to this Court objecting to the disallowance of a

portion of the plaint claim. Pending the appeal, an order for stay was obtained in this Court on condition that the amount of the decree should be

deposited in the trial Court, and the decree-holders should take it out on giving security. The decree amount was accordingly deposited in the trial

Court, and security was given in the shape of a bond by two persons, husband and wife, one of whose legal representatives is the present

petitioner. That bond was in Form No. 3,. Appendix G, First Schedule to the Code of Civil Procedure.

The appeal to the High Court preferred by the defendants succeeded, while the other appeal failed with the result, the decree-holders, who had

withdrawn the amount deposited in the first Court, had to re-deposit the amount with interest. They failed to do so. An execution petition by way

of restitution was filed by the defendants, and arrest of one of the plaintiffs was prayed for. He was not available, and the execution petition was

dismissed.

Subsequently, the present execution application was filed for bringing to sale the properties hypothecated under the security bond given to

Court. Two objections were raised to execution. The first was that the bond did not contain personal liability, and could not be enforced u/s 145

or 151 of the Code of Civil Procedure. The second objection was that without exhausting the remedies open against the principals the security

bond could not be enforced. Both the objections were overruled by the Subordinate Judge and execution was ordered. That order is questioned in

this revision petition.

The learned Counsel for the petitioner raised two points. The first is that the bond is assignable, and the Subordinate Judge should have assigned

the bond to the decree-holder herein and should not have allowed the execution to proceed by bringing the hypothecated properties to sale in this

proceeding. For contending that the bond is assignable, he referred to the decision of Pulavarti Satyam Vs. Kunchibhotla Satyanarayana and

Another, . That was a case where the bond was given under Order 32, Rule 6. It was addressed to the Additional District Munsif, though the

name of the officer was not given. The learned Judge held that the bond was assignable, though it was not executed to the officer by name. The

facts here are entirely different. The form of the bond which follows Form No. 3, Appendix G, First Schedule to the Code of Civil Procedure,

does not mention whether it is executed in favour of any particular officer or Court. The learned Counsel brought to my notice the decision of the

Privy Council in Raj Raghubar Singh and Anr. v. Thakkur Jai Indra Bahadur Singh (1920) 38 M.L.J. 302 : L.R. 46 IndAp 228: ILR (1920) All.

158, where Their Lordships of the Privy Council had occasion to note this form. I am not sure whether the form referred to in the Judgment of the

Privy Council is identical with the form which we have now in Form No. 3, Appendix G, First Schedule to the Code of Civil Procedure. Whatever

it is, from the mere fact that at the top of the bond we find the words, ""to the Subordinate Judge, Coimbatore"" it cannot be said that the bond was

executed in favour of a person. The recitals in the bond amply make it clear that no question of the bond being addressed to any person arises. The

recitals show the liability undertaken by the obligor, and how that liability should be discharged. I do not, therefore, agree that the bond in this case

is addressed to a particular person either by designation or by name. It follows this bond was not assignable, and as was laid down by the Privy

Council in Rohani Ramandhwa v. Har Prasad Singh (1943) 2 M.L.J. 460 : 1943 P.C., in such a case the party should not be left without a

remedy. Even if Section 145, Civil Procedure Code, will not apply, the Court has ample jurisdiction in its inherent power to enforce the bond by

way of execution in the same proceedings to realise the money.

The next point raised by-the learned Counsel is that this bond does not provide for any personal liability. On a reading of the bond, I find

provision is made in it for payment of the balance that would remain due after the sale of the hypothecated properties, by the obligor. That certainly

is an obligation undertaken personally by the persons who have the bond. The fact that in certain contingencies that liability may not be enforced, is

beside the point. The short question is whether the bond provides for personal liability. The answer must be ''yes'' because if the hypotheca is

found to be insufficient personal liability to pay the balance is written into the security bond. That would be sufficient to bring the bond within the

ambit of Section 145 of the Code of Civil Procedure. The learned Judge in the Court below was therefore right in enforcing this bond by bringing

to sale the hypothecated properties in proceedings in execution without driving the parties to a separate suit. The revision petition is dismissed with

costs.