Raghubir Singh and Others vs Maharul Haque and Another

Manohar Lall, J.—This is an appeal by the decree-holders who are aggrieved by the concurrent decisions of the Courts below by which they have refused to allow them to execute their decree against the assets of the deceased surety in the hands of the respondents.

The facts are these. The appellants obtained a money decree against one Zafrul Haque which they proceeded to execute in 1936 by arresting the judgment-debtor. Upon being brought to Court the judgment-debtor availed himself of the provisions of Section 55(4), Civil P.C., and stated to the Court that he would file an application for being adjudged an insolvent. Usual time was allowed and Eazaque stood surety for the judgment-debtor. In the, surety bond certain properties belonging to Eazaque were hypothecated in favour of the Court with this undertaking that he would produce the judgment-debtor whenever he would be called upon to do so and in case of his failure he will himself be liable for the decretal amount. The security bond was executed in favour of the Court and accepted by it on 21st September 1936 when the judgment-debtor was released. The judgment-debtor thereafter actually filed an application for insolvency but it was dismissed. The order was confirmed in appeal by the High Court. In the meantime after, the insolvency case had been disposed of by the learned District Judge the appellants on 5th March 1937 applied to the Court for execution of their decree against the surety as well as against the judgment-debtor so that the execution case proceeded jointly against both. This procedure was evidently wrong as has been held in a large number of cases and has led to complicate this litigation as will appear later. The surety filed an objection to the execution proceeding against him upon the ground that certain provisions of the law had not been complied with. But he did not proceed with this objection which was allowed to be dismissed for non-prosecution on 21st September 1937. This was apparently so because the High Court had stayed the sale of the properties pending the disposal of the appeal which was preferred by the judgment-debtor against the order of the insolvency Judge. After the appeal was disposed of by the High Court the order was received by the executing Court on 14th April 1938. The decree-holder was then directed by the executing Court to take steps for a fresh sale proclamation. The sale proclamation was actually issued but there is no evidence as to the date when this sale proclamation was issued. But after it was issued it was received back unserved as appears from Order No. 26 dated 12th May 1938. This was because the surety died on 4th May 1938, On 17th May 1938 the sons and widow of the surety, who are respondents in this appeal, put forward their objection to the execution of the decree so far as it required the sale of the assets of the deceased surety in their hands. The executing Court accepted this objection on 24th June 1988 and ordered that the sale of the assets of the deceased surety in the hands of the legal representatives would not be held. It may be re-called that the decree-holder was executing his decree jointly both against the surety and against the judgment-debtor. When this adverse order was passed against the appellants they drew the attention of the Court to the fact that the objectors had produced the judgment-debtor as they were directed to do by the executing Court and, therefore, they prayed that the judgment-debtor may be committed to civil prison. The judgment-debtor also filed a petition on the very day praying that he should be committed to civil prison. Accordingly at the request of the decree-holder the judgment-debtor was arrested and was put into the custody of the Nazir and upon the decree-holder complying with the requirements of the law in this behalf the judgment-debtor remained in custody in civil jail for a period of six months.

In the meantime the decree-holder appealed to the District Judge against the order of the executing Court refusing to allow him to proceed against the assets of surety in the hands of his legal representatives. It will be noticed, therefore, that the decree-holder although he had succeeded in getting his judgment-debtor committed to civil jail wanted to proceed with the alternative remedy which he had against the surety. The District Judge allowed the appeal and directed that the assets of the surety would be liable to be sold. Against this decision there was an appeal to this Court which was decided by Bowland and Chatterji, JJ. as Mazharul Haq and Others Vs. Raghuber Singh and Others, on 16th August of that year. The learned Judges held that all the proceedings against the heirs of the surety were irregular and directed that the proceedings should be regularised by bringing the heirs of the surety upon the record as his legal representatives and then notioe should be issued under Order 21, Rule 22, Civil P.C., against them so that they may be allowed to raise whatever objection they had to put forward and further directed that it is only after this procedure had been adopted that execution could proceed against the legal representatives. Accordingly the proceedings were regularised as directed by the High Court. The respondents on being brought on the record took the objection that as the judgment-debtor had actually been committed to civil jail and has served out the whole of the period of six months provided by law, the decree-holder has no longer any right to proceed against the assets of the surety in their hands. The Courts below have concurrently accepted this contention and refused to allow the decree-holder to execute the decree against the heirs of the surety. Hence the second appeal to this Court.

In my opinion, the Courts below have taken a correct view of the law.

The argument advanced on behalf of the appellants was that the option as to whether the decree-holder should be allowed to proceed against the surety or against the judgment-debtor was an option which lay with the Court and as the Court had exercised that option by issuing a sale proclamation in the life-time of the surety, the executing Court is bound to carry on the proceedings against the heirs of the surety even though the judgment-debtor has remained in civil jail for six months. I do not agree with this contention. The case law upon the point is almost unanimous.

The leading case upon this question is the case, in Makanji Mavji Vs. Bhukhandas Nagardas, . In that case the learned Chief Justice pointed out that mere issue of a warrant against the judgment-debtor is not sufficient by itself to bar the Court from proceeding against the surety if the warrant is unfruitful and it is only when the judgment-debtor has been brought back before the Court, so that the Court can commit him to civil prison, that the surety is released. In the course of the decision while considering the effect of Section 55(4), Civil P.C., the learned Chief Justice observed that the Court cannot proceed both against the surety and against the debtor, because if the surety is proceeded against and the amount is recovered from him under the conditions of the bond, then the judgment-debtor cannot be committed to jail in execution, and similarly if the judgment-debtor is committed to the civil prison, the state of affairs is just the same as if the surety had never come forward so that the Court cannot concurrently proceed against the surety. With respect, in my opinion, this is the correct view of the law.

It was sought to distinguish this case by relying upon a later Bombay case in Channappa Basappa v. Yellappa Venkappa AIR 1931 Bom. 444, but if the facts of that case are examined it will appear that all that happened in that case was that the judgment-debtor had been re-arrested and the learned Judge pointed out that the passages from the judgment of the learned Chief Justice in Makanji Mavji Vs. Bhukhandas Nagardas, , which I have quoted above, do not support the contention that once the judgment-debtor has been arrested without being committed to prison the decree-holder cannot proceed against the surety.

Reliance was placed upon the decision of a single Judge of the Allahabad High Court in Makhan Lal v. Narain Das AIR 1929 All. 377 where Dalai, J., appears to observe that the language of Section 55(4), Civil P.C., leaves no doubt that the option lies with the Court executing the decree and not with the decree-holder. The facts however were stated just after this observation at page 378:

In the present case the Court started proceedings against the judgment-debtor, required his presence in Court and did not proceed in execution against the surety. After hearing arguments the Court discharged the surety and directed the decree-holder to take action against the judgment-debtor, who was at the moment present in Court. The Court not having proceeded against the surety and having proceeded against the judgment-debtor, decree-holder is not permitted by statute to proceed against the surety.

With respect I do not agree that Section 55(4) leaves the option to the Court. All that the section says is that the decree-holder has two remedies and he may avail himself of either. The Court upon being satisfied that the decree-holder can proceed against the surety, for instance where the surety has rendered himself liable owing to a breach of a condition in the surety bond, must issue execution in that form against the surety if the decree-holder so desires. It the decree-holder on the other hand desires that the judgment-debtor should be sent to prison then the Court will hear the objection of the judgment-debtor and is bound to execute the decree in that manner provided there is no other bar. In every case it is true the Court has to be satisfied, but I do not see how the section gives the option to the Court.

Fazl Ali, J. in Satya Narain Prasad and Others Vs. Mahabir Prasad Marwari, appears to doubt the correctness of this decision because he observed at page 358:

Assuming that this view is correct, the option had been exercised by the learned Subordinate Judge in this case in favour of the surety on a previous occasion and the matter could not be r0e-opened before him.

Even if it is assumed that this view is correct the executing Court had exercised the option and had refused to execute the decree against the heirs of the surety. The decree-holder far from protesting against that action immediately proceeded to request the Court to arrest the judgment-debtor who was then present in Court and to put him to civil prison.

Thereafter with the concurrence of the decree-holder the Court exercised the option, if it had any, and gave the decree-holder the full remedy which he had against the judgment-debtor. The judgment-debtor has already served six months in civil jail. The proper procedure to be adopted by the decree-holder was that he should have appealed to the District Judge and not proceeded with the alternative remedy against the judgment-debtor. Having once given up his rights against the surety''s heirs I do not think he should be allowed to re-open the matter by asking that the heirs of the surety should be proceeded against.

Motichand v. Kashiram : AIR 1933 Nag. 38, was also referred to. This is also a decision of a Single Judge. In this case, the situation was peculiar in that the judgment-debtor who appeared in Court was sent to jail and the sureties were also sent to jail. The judgment-debtor could not appear on the date fixed and the sureties could not produce the judgment-debtor because it was found as a fact that the judgment-debtor was ill and it would have been a serious detriment to his ill-health if he was compelled to attend the Court. The learned Judge observes that it is not open to the Court to proceed both against the judgment-debtor and the surety; it could proceed only against one or the other and referred to the decision in Makanji Mavji Vs. Bhukhandas Nagardas, . In the present case the decree-holder all along has been proceeding simultaneously both against the surety and the judgment-debtor.

Motichand v. Kashiram : AIR 1933 Nag. 38, was then referred to. This case again does not help the appellant. The learned Acting Judicial Commissioner observes:

Section 55(4), Civil P.C., lays down that if the judgment-debtor fails to appear on the date fixed, the Court may either direct the security to be realised from the surety or commit the debtor to the civil prison in execution of the decree. The Court cannot proceed against both. Until the Court at the request of the decree-holder committed the judgment-debtor to the civil prison the surety remained liable and the Court could have directed that the security be realised from him. But before an order directing the realisation was passed, although the possibility of such an order was under contemplation, the alternative of committing the judgment-debtor to prison was followed and the discharge of the surety should have followed automatically. The option afforded by the section was, exercised. If proceedings had been taken against the surety and the amount of the decrial debt been recovered from him, the judgment-debtor could not have been committed to jail in execution. Conversely, if the judgment-debtor is committed to jail the position is as if the surety had not some forward with his undertaking at all and the judgment-debtor once having been committed to prison, the Court cannot concurrently proceed against the surety. The provisions of Section 55(4), Civil P.C., are explicit.

Our attention was drawn to the recent decision of the Allahabad High Court in Firm Lachhman Das Chhiddu Lal Vs. L. Babu Lal Surety and Others, but that case does not seem to be of any help in this case. There is a passing observation that the Court has a discretion in making or refusing an order in favour of the decree-holder u/s 55(4), Civil P.C.

For these reasons I am satisfied that the Courts below have taken a correct view of the law. The appeal fails and must be dismissed with costs.

Harries, C.J.

I agree.