Satish Chandra Roy vs Haridas Chakraborty and another

R.S. Bindra, J.C.

This second appeal by Satish Chandra Roy, the decree-holder, is directed against the order, dated 15-7-1965, of the District Judge, Tripura by which the latter allowed an appeal of Haridas Chakraborty. the surety, against the order dated 1-10-1964. of the executing Court dismissing the objections of the surety against the execution application made by him (Satish Chandra Roy).

The facts of the case may first be briefly summarised to comprehend the precise point that arises for determination in the appeal. Satish Chandra Roy filed a Money Suit against Priyanath Nandi, on 24-1-1963 and on 4-3-1963 he made an application, supported by an affidavit, under R. 5 of O. 38. Civil Procedure Code, for attachment before judgment. That application was taken up by the Court for consideration on 18-3-1963. The Court made up its mind on that date to attach the properties listed in the affidavit and so issued a writ of attachment and simultaneously issued a notice to the defendant for showing cause within 15 days, why he should "not furnish security to the extent of the claim of the plaintiff". It was mentioned in the order, dated 18-3-1963, that if the defendant furnished security his properties should not be attached. The case was then adjourned to the next day namely. 19-3-1963. for the plaintiff to file "requisite". On the latter date the defendant Priyanath Nandi. appeared in the Court through a counsel and prayed for time to file abjections against the order for attachment before judgment. During the course of the same day, the defendant happened to file another petition "praying for time to furnish security as per previous order". The Court consequently gave him time until 21st of March, 1963. for furnishing security, failing which the relevant order stated, "writ of attachment will be issued". On 21-3-1963 Priyanath Nandi produced the security bond executed by Haridas Chakraborty. the respondent No. 1 herein. The Court directed the Sheristadar to check the bond and submit a report to the Court on 25-3-1963. On the latter date the bond was accepted. The relevant terms of the bond shall be detailed at the appropriate stage in the judgment.

The suit of Satish Chandra Roy was decreed against Priyanath on 9-6-1964. Soon thereafter Satish Chandra sued out execution of the decree against the surety Haridas alleging that no properties, moveable or immoveable, of the judgment-debtor Priyanath was available for the satisfaction of the decree. Haridas filed objections against that prayer for execution. In substance he pleaded that the decree-holder could proceed against him after exhausting his remedy against the judgment-debtor, and that the prayer for execution against him was not maintainable in law. The executing Court rejected his objections on the findings that the decree-holder had sought execution against the surety after having abortively attempted to recover the decretal money from the judgment-debtor and that there was no legal hurdle in the way of the decree-holder seeking recovery of the outstanding sum from the surety.

Haridas having felt aggrieved took the matter in appeal to the Court of the District Judge, who allowed the appeal on holding that the security bond furnished by Haridas being not in the form prescribed by R. 5 of O. 38. of the Code, the decree-holder was not entitled to execute the original decree against him. In support of that conclusion the learned District Judge relied on the decision in the case of Ramprasad Dalsukhram Soni Vs. Somabhai Kacharabhai and Another, .

In the present appeal, the decree-holder Satish Chandra challenges the correctness of the view taken by the learned District Judge.

R. 5. of O. 38 prescribes that when the Court is satisfied that the defendant, with intent to obstruct or delay the execution of the decree, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree. or to appear and show cause why he should not furnish security. The form of security bond is given in Appendix ''F'' of the Code, its number being 6. That form corresponds with the requirements of Rule 5. The bond furnished by Haridas undoubtedly is not in that prescribed form. That bond states that the Court had made an order for attachment before judgment of some moveable properties belonging to the defendant and had also called upon the latter to furnish security for the dues of the plaintiff, therefore he (Haridas) of his free will offers to stand surety to the extent of Rs. 3523.50 charging his properties, specified in the schedule appended to the bond and assures that the final decree passed against the defendant shall be paid by the latter. The last para of the bond is crucial and so I reproduce it in full. It reads:

In case the defdt. fails to pay the sum or if it is not recovered from the defdt. by the execution, then the amount so payable under the decree or the balance money of the decree, if not realised from, the defdt said amount shall be realised from the properties hereby kept as Security and charged for the same. In case the sale proceeds are insufficient to pay the amount due. I myself and my legal heirs will be personally liable to pay the balance. To this effect I execute this Security bond on this 21st day of March, 1963 in presence of witnesses.

It may be recalled that the defendant had put in appearance in the Court, on 19-3-1963. before notice of the order. dated 18-3-1963. had been issued or served on him and that he had craved "for time to furnish security as per previous order", and that the Court then adjourned the case to 21-3-1963 on which date the bond was furnished by the surety Haridas and the same was accepted by the Court. It looks obvious that the plaintiff and the defendant had no objection to make against that bond, as constituting compliance with the Courts orders dated 18th, 19th and 21st of March, 1964. It is also clear that the bond was furnished by Haridas pursuant to an order made by the Court calling upon the defendant to furnish security for the amount due to the plaintiff. In the order dated 18-3-1963. it had been unequivocally provided that the defendant had the alternative of showing cause why he should "not furnish security to the extent of the claim of the plaintiff" and that in his second petition made to Court on 19-3-1963 the defendant had prayed for time to furnish security as per previous order which obviously was the order dated 18-3-1963. In the context of these circumstances, it was legitimately contended by Shri R. Ghosh for the decree-holder that the liability of the surety is enforceable in terms of Section 145 of the Code. That section provides, inter alia, that where any person has become liable as surety for the performance of any decree or any part thereof or for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him. to the extent to which he has rendered himself personally liable, in the manner provided in the Code for the execution of decrees. On the terms of the bond reproduced above, it is plain that the amount of the decree could be realised from the surety Haridas in case the defendant failed to pay the amount decreed or if it was not recovered from him. It was not disputed in this Court that the money could not be realised from judgment-debtor and so in terms of the bond Haridas is bound to pay the decretal amount. And since the bond had been given by him under an order of the Court passed in a suit the decree-holder is well within his rights to avail of the provisions of Section 145 of the Code and sue out the execution of the decree against Haridas. the surety.

The mere fact that the security bond furnished by Haridas does not correspond with the form No. 6 of Appendix ''F'' to the Code is not of any legal consequence. Firstly, the non-compliance with the provisions of R. 5 of O. 38 or non-adoption of form No. 6 of Appendix ''F'' in the matter of taking the security bond would at the best constitute an irregularity and not invalidate the bond altogether. If the bond furnished falls within the ambit of Section 145, the executing Court would be justified in enforcing its terms against the surety at the instance of the decree-holder to the extent of the liability undertaken by the former. The matter at issue is certainly not res Integra. The Calcutta High Court held in the case of Amulya Ratan Vs. Prosad Chandra Kar, that R. 5 of O. 38 no doubt contemplates security for the production in Court of the property sought to be attached before judgment or its value at a future time when called UPON and the amount of the security demanded should ordinarily be commensurate with the value of the property sought to be attached but the object of the legislature in providing for attachment before judgment. being to secure the prospective decree-holder in the matter of realisation of the money that might be eventually found by the Court to be due to him. the fact that the Court had asked the defendant to furnish security for the decretal amount and the bond executed by the surety had gone beyond the terms of Rule 5 would at the most constitute an irregularity in the exercise of its jurisdiction. The High Court observed further that the surety having executed the bond in the form he had done, he could not be heard to raise the objection against the enforcement of the bond in the course of execution proceedings started against him under the provisions of Section 145 of the Code. The facts of Calcutta case are on all fours identical with those of the case in hand. There, as here, the defendant had appeared in Court before the attachment was effected and offered to furnish security. Prosad Chandra (of the reported case) mentioned in the surety bond that notice had been issued by the Court to the defendants, that the Court had allowed the defendants to furnish security, that he (the surety) had made himself, along with another person, personally liable to the extent of Rs. 860/- and that he had undertaken to pay the same in case the decretal amount could not be realised from the judgment-debtors. I have not been able to notice any distinguishing feature between the facts of the reported case and those of the one in hand. The view taken by the Calcutta High Court has the merit of being practical and since it does not offend any principle of law I am in respectful agreement with the same.

The Calcutta High Court took an identical view in the case of Badri Prasad Jhunjhunwalla Vs. Babulal Jhunjhunwalla and Others, . It was observed in that case that an order for attachment before judgment, passed without complying with Rules 5 and 6 of Order 38. is both irregular and objectionable, but nevertheless such an order is not necessarily ultra vires or void ab initio. An identical view was taken by the Rajasthan High Court in the case of Panna Lal v. Nand Kishore. 1955 Raj LW 208. The facts of the Rajasthan case were also identical with the facts of our case, and that Court held that on the language of the surety bond there remains no doubt that the surety became liable for the performance of any decree which might be passed against the defendant in the suit. Another observation made by the Rajasthan High Court was that even if it be considered that the surety bond was not a surety bond within the meaning of R. 5 of O. 38. it was undoubtedly a bond by which the surety had become liable for the performance of any decree which might be passed in the suit and that (mark these words) it is not only the surety bond given under that provision of the Code which can be enforced u/s 145. These observations appear to be altogether unexceptionable. To recapitulate the facts of our case, the court directed on 18-3-1963. that a notice should be issued to Priyanath for 19-3-1963 calling upon him to show cause why he should not furnish surety to the extent of the claim of the plaintiff and his properties mentioned in the affidavit of the plaintiff be attached. On 19th March Priyanath appeared in the Court and offered to furnish security and thereby avoided the attachment of those properties. On 21-3-1963 he offered Haridas as surety and the latter then furnished the bond which was accepted by the Court. That bond was obviously acceptable to the plaintiff. Therefore, that bond represents a tripartite agreement between the plaintiff, the defendant and the surety, and it received in addition the imprimatur of the Court. On its terms it falls within the ambit of Section 145. C. P. C. Hence, there appears no good reason or valid justification against its enforcement in terms of that section. It has to be emphasised that for a number of years the validity of the bond remained unchallenged. It is easy to spell out from the facts just stated that the parties concerned and the Court agreed mutually to substitute the bond of the nature given by Haridas for the one mentioned in form No. 6 of Appendix ''F'' to the Code. Therefore, it is too late in the day for Haridas to assail successfully the validity of that bond.

Shri R. C. Bhattacherjee. appearing for the surety relied on the decision in the case of Ramprasad Dalsukhram Soni Vs. Somabhai Kacharabhai and Another, to support his contention that the bond being not in compliance with the provisions of R. 5 of O. 33 and the form No. 6 of Appendix ''F'' the decree-holder could not sue out execution against the surety u/s 145 of the Code without the Court first determining what is the exact Quantum of the liability of the surety. In other words, he conceded that the bond can be enforced u/s 145 of the Code but that can be done, according to him only after a notice is given to the surety and the latter''s extent of liability in terms of the bond is adjudged. I regret my inability to subscribe that contention. Haridas had clearly committed himself in the last para of the bond (reproduced above) that in case the defendant failed to pay the amount claimed in the suit, he would be personally liable to pay the outstanding balance after the sale of the property given by him as security. That property was Motor Jeep No. TRA 18. It was not contended by Shri Bhattacherjee that Motor Jeep is still available for paying the decretal amount or any part of the latter amount has been paid by the judgment-debtor. Therefore. Haridas is clearly liable to pay the entire decretal sum in virtue of his commitment made to the Court per bond dated 21st of March. 1963. The exact terms of the bond furnished by Ram Prasad of the Gujarat case are not set out in the body of the judgment and so it is difficult to accept that the facts of that case bear any analogy to the facts of the case in hand. Since Haridas of our case had undertaken to pay the decretal amount if it remained unpaid by the defendant, his case is clearly covered by clause (a) of Sec. 145 of the Code.

In the result. I allow the appeal, set aside the order of learned District Judge, restore the one made by the executing Court, and dismiss the objections filed by Haridas against the execution application made by Satish Chandra Roy. In view of somewhat difficult and technical nature of the point involved in the appeal. I leave the parties to bear their own costs in this Court and in the Court of the District Judge.