Pappuswamy vs Chellampalli Eashwariah

Siadat Ali Khan, J.—This is Revision Petition No. 95, Register No. 4 of 1952, Single Bench, Civil, Telan-gana. The First Judge, Small Cause Court, by judgment dated 4-7-1952, has directed that the revision-Petitioner Pappuswamy in his capacity of a surety should be held liable for the decretal amount Hence this revision petition.

I have heard the arguments of the learned Advocates for the parties. In the money suit, in which the revision-Petitioner stood surety for the judgment-debtor,'' orders for attachment before judgment were issued and the revision-Petitioner executed a surety bond undertaking to pay the decretal amount in case the suit was decreed. This suit was decreed ex parte and the judgment-debtor applied for the setting aside of the ex parte decree u/s 9, Hyderabad Small Cause Courts Act. u/s 9, Hyderabad Small Cause Courts Act, he was bound either to deposit the amount of the ex parte decree or furnish or express willingness to furnish security for the same before he could apply for the setting aside of the ex parte decree. He prayed that the security of Pappusamy already furnished will serve the purpose; but in the order sheet dated Kith Amardad 1356F he was directed to furnish security and accordingly Awala Narasimha executed a bond of surety. It is not necessary for me to record that the case went up in revision to the High Court twice in this setting aside of ex parte decree proceedings. This Court in a revision also directed that fresh security should be taken and Awaia Narasimha again executed another bond. What is important lor the purpose now in hand is that the ex parte decree was ultimately set aside, and the money suit also was decreed.

The judgment-debtor started execution proceedings against the surely pappusamy, and by the judgment under revision he was held liable. The only question for determination is whether this is correct and Awala Narasimha the subsequent surety was correctly exonerated. It should be noted that Awala Narasimha gave surety during the ex parte proceedings and there is plenty of authority to the effect that security given tinder Section 17, Provincial Small Cause Courts Act ends with the ex parte proceedings, vide in the case of-- Kangloo Meghnath v. Nenachand Kunwarlal, AIR 1944 Nag 103 (A), where it has been held that when the ex parte decree is set aside, the surety is discharged and is not liable or the decree that may ultimately be passed. It should be noted that the Calcutta, Bombay and Allahabad High Courts in-- Pulin Chandra Chattapadhya Vs. Khetra Mohan Ghose, (B) -- Maganlal Pitamberdas Khatri Vs. Dahyabhai Chhaganlal Vyas, (C) Tulsi Misir Vs. Bindeshri Misir, (D) have come to the same conclusion. In the circumstances, Awala Narasimha cannot be held liable after the termination of the ex parte proceedings. It is of course clear that the liability of a surety continues till the suit is deeided. Papusamy stood surety for paying the amount which may be decreed. Under the express terms of his bond, he becomes liable and therefore, I see no substance in this revision petition.

The learned Judge had relied on 17 Deccan LR 219 (E) and 28 Deecan LR 788 (F). The first mentioned case only decides that the mere application for relief does not exonerate the surety and in any case, he is not released without the consent of the Plaintiff. In 28 DLR'' on an order of attachment before judgment in the trial Court, a surety undertook to pay the suit money in case it was decreed by the trial Court. The suit was decreed by it, but was dismissed by the District Court and was decreed again by the Sadar Adalat and the question, therefore, arose whether the surety was liable. In the view which prevailed, it was held that it was on the ground that the surety''s recognizance was that he would pay if the suit was decreed and as the suit was decreed, his liability matured and attached to him.

The Hyderabad Judicial Committee''s case of 15 Deccan LR 317 (G)'' was also referred to in which the provisions of Section 520H. CPC were relied on. These provisions are to the effect that it is the duty of the Court to cancel the order of attachment if the case is dismissed. The Judicial Committee has held further that when a suit is dismissed, the order of attachment before judgment also comes to an end. In this revision petition before me, the suit WAS not dismissed, but was decreed and there-tore the order of attachment can not be deemed to have come to an end. Under Order 38, Rules 2 and 5, it is clear that the surety liability is for a decree which will ultimately be passed and u/s 145 I. CPC a decree can be executed against a surety. In the circumstances, I say again that there is no substance in this revision petition. Let it be dismissed with costs.