Odayamangalath Appunni Nair vs Isack Mackadan

Seshagiri Ayyar, 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 respondent before us agreed to stand surety for him. There upon, 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, now pleads that, by his producing the defendant before the Court and praying to be relieved from responsibility, the

liability which he undertook under the bond was put an end to. There is a further contention that, as the parties to the suit instead of going to trial

agreed to a decree by consent, the surety 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 Second 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 Second Appeal, his contention is that, if the Civil Revision Petition goes, the ground of appeal in the Civil Miscellaneous Second

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 Second Appeal has been presented, we are entitled in Second

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

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

under Order XXXVIII. 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 nay 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 XXXVIII, 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 which provides for the discharge of the surety runs thus:

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 is conceded that there was no summons or warrant against the defendant. He was in Court for the purpose of conducting the 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 a Court for the

purpose of conducting his case, is exempt from arrest"". In order to satisfy 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 XXXVIII. 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 XXXVIII, Rule 1 and Section 135. Under Order XXXVIII, 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 decree-holder to apply for the arrest of the judgment-debtor

immediately after decree. These are the only two exceptions which the law has recognized, and it seems to me that not with standing obvious

inconveniences in requiring that an application should be made for the arrest of a 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 recognized 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 the Court to render justice as between party and party by not subjecting a person, who is expected to assist it in the discharge of its duties,

to the disability of a possible arrest. However that may be, the principle of exemption has been well stated in Appasamy Pattar v. P.E. Govinen

Nambiar (1868) 4 Mad. 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 by 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 Zainab Bee v. The Official Assignee of Madras (1914) 24 I.C., 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 (1869) 4 B.L.R.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-recognized 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 Order XXXVIII, Rule 3.

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

decrees 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 Nayar furnished two answers to 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 a special stipulation in 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 obligation 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 therefore the

agreement 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 Original Suit No. 325 of 1917 (Calicut Additional District Munsif''s Court) under Order

XXXVIII, Rule 1 of the Code of Civil Procedure. 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 Code of Civil

Procedure, but the variation does not appear to me to be material for She 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 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 defendant. 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 (Order XXXVIII, Rule

3). He did not appear and steps to effect arrest were not taken as the surety failed to pay the required batta, The respondent''s application for

discharge was dismissed on 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

(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 was

discharged. In this, I think, he was wrong. The procedure provided by Order XXXVIII, Rule 3, had 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 security had been required [vide Appasamy Pattar v. P.E. Govinen Nambiar (1868) 4 Mad.

H.C.R. 145 and Zainab Bee v. The Official Assignee of Madras 24 Ind.Cas. 513]. Order XXXVIII, 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 into 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 had 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 civil miscellaneous

second appeal.