Odayamangalath Appanni Nair vs Isaak Mackadam

Seshagiri Aiyar J.

The original suit was instituted against one C.W. Fuller. In the course of the suit an application was made for his arrest. When he was brought

before the Court the Respondents before us agreed to stand surety for him. Thereupon Fuller was released from custody. I shall refer to the terms

of the bond and its legal effect later on. Subsequent to this, the surety asked the Court, at a time when Fuller was before it to conduct his case, that

he should be relieved from his obligation to produce the defendant. The District Munsif did not apparently agree to this course. Thereafter the

plaintiff and the defendant agreed to a consent decree which has now been put in execution. The surety whose bond was not in terms discharged

contended that the bond was discharged u/s 135 of the Indian Contract Act. The District Munsif rejected these contentions and ordered execution.

On appeal the District Judge has reversed that order. A Civil Miscellaneous Appeal against the order refusing execution against the surety and a

civil revision petition against the order discharging the surety from liability have been filed in this Court.

Mr. Menon for the respondent raised a preliminary objection that as the District Judge in the exercise of his appellate powers released the surety

from liability and as his decision on law does not affect his jurisdiction the Civil Revision Petition is incompetent. As regards the Civil Miscellaneous

Appeal his contention is that if the Civil Revision Petition goes, the ground of appeal in the Civil Miscellaneous Appeal fails and should be

dismissed. It may be that for the hearing of the Civil Revision Petition the preliminary objection has some force-But as the same order has been

passed in the appeal from which the Civil Miscellaneous Appeal has been presented we are entitled in Second Appeal to scrutinise the correctness

of that order. I must overrule the objection so far as it relates to the Civil Miscellaneous Appeal.

Now to the merits. Mr. Madhavan Nair at the outset referred us to the terms of the bond which ought to have been taken by a Civil Court

under Order 38. Form No. 2 in Appendix F of the CPC is far more comprehensive than the bond which has been taken in the present case. The

attention of the District Judge should be drawn to the incompleteness and inaccurate language of the bond now before us. It is desirable that in

taking bonds of this description the provisions of the Code should be strictly complied with. None the less we are not concerned now with what

might have been the terms of the bond but only with the interpretation of the actual agreement that was signed. We must therefore deal with the

liability of the surety with reference to the bond which he actually executed. By that bond which is Exhibit A in the case, the surety undertook "" to

produce the defendant at the time and place ordered by the Court. If I fail to do so, I and my properties are liable for the amount payable to the

plaintiff."" The question for consideration is, did he produce the defendant at the time and place ordered, by the Court. The procedure to be

adopted on an application by the surety for discharge from liability is contained in Order 38 Rule 3. Two contingencies are contemplated in that

rule. The first is an application by the surety for discharge whereupon the Court decides either to summon the defendant or to issue a warrant for

his arrest. Clause (3) of that Rule provides for the discharge of the surety : ""On the appearance of the defendant in pursuance of the summons or

warrant, or on his voluntary surrender, the Court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to

find fresh security."" It was conceded that there was no summons or warrant against the defendant. He was in Court for the purpose of conducting

his suit. The next point is did he surrender himself on that occasion. The District Munsif says : ""He also expressed his unwillingness to surrender that

day. I declined to arrest him on the spot as he being a party attending Court for the purpose of conducting his case, is exempt from arrest. "" In

order to satisfy the the requirements of a surrender it is not enough that a party is before the Court but he should submit himself to be dealt with by

the Court as directed by Order 38. The sentence from the Munsif''s judgment which I quoted makes it clear that the defendant did not surrender.

Learned arguments were addressed to us upon the question whether it is necessary that the defendant must be in a position to be arrested in

order that the requirements of production by the surety may be satisfied. The two provisions of the Code which have a bearing on this question are

Order 38 Rule 1 and Section 135. Under Order 38 the Court is empowered at any stage of the suit to issue a warrant to arrest the defendant and

to bring him before the Court. At first sight it may appear as if the defendant is liable to be arrested while he is engaged in the conduct of his suit.

But turning to Section 135 the meaning of the Legislature seems to be clear. The first clause of Section 135 provides for immunity of judicial

officers from arrest while discharging their judicial functions. By Clause (2) the parties to the suit, pleaders and witnesses are exempted from arrest.

The latter portion of Clause (2) says that in cases in which the party before the Court is guilty of contempt the exemption would not apply to him.

Clause (3) provides for a further exception and enables a deree-holder to apply for the arrest of the judgment-debtor immediately after decree.

These are the only two exceptions which the law has recognised and it seems to me that notwithstanding obvious inconveniences in requiring that

an application should be made for the arrest of the judgment-debtor, while allowing him to get away from Court, the Code leaves us no room for

doubt on the matter. The principle enunciated in Section 135 has long been recognised in England and in India. It is not necessary to consider the

vexed question whether the rule has been enacted in favour of parties or to safeguard the rights of the Court. I am inclined to the view which has

found favour with some eminent Judges both in this country and in England, that the intention of the Legislature is to enable Courts to render justice

as between party and party by not subjecting a person who is expected to assist them in the discharge of their duties to the disability of a possible

arrest. However that may be, the principle of exemption has well been stated in Appasamy Patter v. Govinda Nambiar (1868) 4 M.H.C.R. 145 in

these terms : "" The well'' established rule of English Law that a witness or party to a Civil suit, whose attendance is required on a trial before a

judicial tribunal, is protected from arrest on civil process during the time reasonably occupied in going to, attending at, and returning from, the place

of trial, rests on a principle which applies with full force here, namely that freedom from the fear of arrest encourages willing attendance and thus

tends to the advancement of justice."" That case is also an authority for the proposition that a party who comes to Court to give evidence should not

be arrested while he is before the Court. The principle of this decision was followed in a later decision in Zinab Bee v. The Official Assignee of

Madras (1313) 24 Ind.Cas. 513.. In that case the learned Chief Justice and Mr. Justice Oldfield held that while a person appeared in Court to

prosecute an insolvency petition he should not be arrested for claims arising under the petition for insolvency. John v. Carter (1870) 4 B.L.R.O.J.C

90 also contains observations to the same effect. Mr. Menon strenuously contended that it would be a meaningless procedure to demand that a

fresh process should issue for bringing a person to Court without taking steps to detain him in custody while he is already actually before it. As I

said before the rule of exemption of a party appearing to conduct a case is a principle founded on a well recognised theory of jurisprudence which

we are not at liberty to ignore. I am therefore unable to agree with the view of the District Judge that the presence of the defendant in Court albeit it

was for conducting his suit at the time when the surety asked the Court to discharge him from obligation, was a compliance with O.38 Rule 3.

There is one other contention of Mr. Menon which must be referred to. He argued that as his client undertook the liability only for any decree

that may be passed on trial and as the ultimate decision of the Court was based on a compromise the bond spent itself out. Mr. Madhavan Nair

furnished two answers for this contention and I think both of them are right. The first is that the surety-bond does not say that the liability is to be

only for a decree that may be passed on contest. There is nothing unreasonable in a surety agreeing to be bound by a decree which may be passed

either after trial or with the consent of parties; in the absence of special stipulation on that behalf, there is no ground for limiting the liability only to a

decree passed after contest. If there has been collusion between the plaintiff and the defendant in obtaining the decree the surety is not without

remedy. Secondly, Section 135 of the Indian Contract Act contemplates contractual obligations between the parties. Under the CPC the bond is

given to the Court and any infringement of the terms of the bond is a violation of the obligations to the Court, and thereafter the agreements

between the parties which resulted in a compromise decree has not the effect of discharging his liability to the Court. For all these reasons I think

the order of the District Judge should be reversed and that of the District Munsif restored with costs here and in the Court below. The Civil

Revision Petition is dismissed without costs.

Burn, J.

Action was taken against the first defendant in O.S No. 325 of 1917 (Calicut Additional District Munsif''s Court) under Order 38 Rule 1 of the

C.P. Code. Security was furnished and the surety is the respondent in the Civil Miscellaneous Second Appeal and Civil Revision Petition. The

bond which he executed does not follow the wording of the form given in the appendix to the CPC but the variation does not appear to me to be

material for the disposal of the present matter. The liability with which the surety has been saddled by the Court of first instance is clearly within the

terms of the bond. The surety can escape only by showing that his liability has been terminated. The bond was executed on 31st December 1915

and the suit was disposed of on the 15th November 1917 when a decree was passed in favour of the plaintiff in accordance with the terms of a

compromise entered into between him and the defendants. On the same day the surety applied to the Court to be released from his obligation on

the ground that business engagements would prevent him from producing the defendant before the Court in future-The first defendant was present

in Court and the Court was asked to take him into custody. The District Munsif declined to do so, holding that the first defendant was exempt from

arrest because he was attending the Court as a party for the purpose of conducting his own case. The first defendant was allowed to leave the

Court and summons was issued for his appearance. (O. 38 Rule 3). He did not appear and steps to effect arrest were not taken as the surety

failed to pay the requisite batta. The respondent''s application for discharge was dismissed on the 5th June 1918 and the decree-holder was

permitted to proceed in execution against the respondent; but these orders were reversed by the District Judge.

The decree-holder has therefore preferred the present Civil Miscellaneous Second Appeal and Civil Revision Petition. The appeals before him

(the District Judge) were disposed of simultaneously and there is in effect only one judgment. I think the whole matter is open for consideration.

The District Judge was of opinion that by the mere fact of the first defendant''s appearance in Court, the obligation of the surety is discharged. In

this, I think, he was wrong. The procedure provided by O. R 3 has to be adopted before the Court could grant the discharge. The issue of a

warrant is in any event discretionary and I am inclined to agree with the District Munsif that in the present instance, the first defendant was

protected against arrest in Court by the provisions of Section 135 of the Code of Civil Procedure. It is immaterial that his presence was in

connection with the suit in which the security had been required : (vide Appaswami Pattar v. Govindan Nambiar (1868) 4 M.H.C.R. 145 and

Zainab Bee v. The Official Assignee of Madras 1913) 24 Iind.Cas. 513. Order 38 Rule 3 contemplates that the application of a surety should be

disposed of after the defendant has been brought before the Court for the purpose of the application or has surrendered to the Court for this

purpose. These conditions were not complied with in this case.

For the respondent the principle underlying Section 135 of the Contract Act has been referred to and it has been contended that as the first

defendant entered info a compromise with the plaintiff without the assent of the surety, the latter is discharged from his obligation under the

security-bond. This provision is not in my opinion applicable. The respondent has made himself liable for the amount that might be adjudged against

the defendant. This adjudication might follow a compromise which the Court considers lawful and the liability of the surety is not limited to cases

where there has been a contest to the finish. The liability of the surety is neither greater than nor different from that which he undertook.

I agree that the orders of the District Judge should be set aside and those of the District Munsif restored with costs of the Civil Miscellaneous

Second Appeal.