Peria Appuswami Naidu vs N. Krishnaswami Naidu and Another

Krishnan Pandalai, J.—This appeal raises a question of not very common occurrence, and it is whether, when a surety under Order 38, Rule

2 has given a bond to produce the defendant when called upon to produce him, he is under a legal liability to see that the defendant is so to say in

an attachable condition, in other words, whether it is a breach of the bond if the defendant has previously applied for being adjudicated an insolvent

and has obtained exemption from arrest from that Court. Both the Lower Courts have answered this question in the negative. The decree-holder,

who is the appellant in this appeal, objects that he has authority in his favour and relies upon A. Subratnania Iyer v. Abdul Rahman AIR 1923

Rang. 98. The facts there were very similar because the surety did produce the defendant in that case but he had a protection order against being

arrested. The learned Judge of the Rangoon High Court held that this was a breach of the surety''s bond. He took the view that the object of

producing the defendant is to satisfy the claim of the plaintiff and that therefore to produce a defendant, who could not be compelled to satisfy the

decree-holder''s claim, is not a real production at all as there could be no satisfaction of the decree or punishment of him (defendant) for not

satisfying the decree because he (defendant) appeared under a protection order from the Insolvency Court. I regret that I cannot agree with this

view. The bond was only to produce the defendant which was done. There was nothing said about the solvent condition of the defendant for which

the surety was not responsible nor can such a condition be introduced into a bond limited by its terms to the production of the defendant.

Reference was made to Appunni Nair v. Isack Mackadan ILR (1919) 43 Mad. 272 : 37 M.L.J. 435, which has very little bearing to the point

before me, as all that was held there was that, when a surety applies for discharge from his bond under Order 38, Rule 3 and the defendant himself

comes to oppose that petition and while doing so he is exempt u/s 135 from arrest or detention, the surety has not satisfied the condition for his

release, namely, that he should produce the defendant; in other words, when the defendant himself comes to the Court to conduct his litigation, he

is not produced by the surety. That has no bearing to this question. I think the surety (respondent) satisfied the condition of his bond when

admittedly in pursuance of the order of the District Munsif the defendant was in fact produced in that Court. The appeal must be dismissed with

costs.