Shoukat Mohammad Hatrot vs Narayana Govinda Naik and Others

The appellant is the second Judgment-debtor who was one of the sureties who executed a bond under Order 41 Rule 6 C. P. C. in the form presented in Appendix ''G''. But the bond was executed in the name of the Court and not in the name of the Presiding Officer or any Officer of the Court.

It is urged by Mr. K. A. Swamy, firstly that since the bond is not executed in the name of the Presiding Officer or any other officer of the court, the court being not a juridical person, the bond is inexecutable. Secondly, it is urged that the surety bond cannot be enforced in the execution proceeding, but that it can be enforced only in a separate suit filed against the sureties.

He has relied on the decision in AIR 1919 PC 55 : 46 Ind App 228 (Raghubar Singh v. Jaj Indra Bahadur Singh). In that case, the surety bond created a charge on the Immovable property but there was no personal liability undertaken by the surety. Their Lordships of the Privy Council held that since there was no personal liability incurred under the surety bond, though it created a charge upon the immovable property, Section 145 C. P. C. was not applicable. Their Lordships further held that Section 47 C. P. C. was not applicable since the surety was not a party to the suit which ended in a decree. But in the present case, the surety bond imposed a personal liability, on the sureties. Hence, Section 145 C. P. C. would be applicable to the facts of the pre sent case. Consequently, the sureties must be deemed to be parties to the suit within the meaning of Section 47 C. P. C. Hence, it is not necessary for a separate suit being filed against the surety. The observation of the Privy Council in the above said case that the only mode of enforcing the liability created by the surety bond is by the court making an order in the suit upon an application to which the sureties are parties, that the property charged be sold, is made in the context of the finding that the surety bond could be enforced in that case only by a suit since Sec. 47 C. P. C, was held inapplicable.

Their Lordships of the Privy Council also considered the contention of the sureties in that case to the effect that the liability undertaken by them cannot be enforced since the surety bond was in the name of the court and not in the name of any officer of the court. Their Lordships rejected that contention and held that though the court is a juridical person (?), there is an unquestioned liability and there must be some mode of enforcing it, and that the only mode of enforcing must be by the court making an order that the property charged be sold unless before a day named the sureties find the money. Such an order had to be made according to the facts of that case in the suit. But in the present case, Section 47 C. P. C. is applicable. Such an order can be made and has been made in the execution proceeding. It is also the view taken by this court in (1968) 2 Mys LJ J24 (Shakarappa v. Daniel).

This appeal therefore fails and is dismissed with cost.

Appeal dismissed.