Korath v. Gopalan Nair — 1951 DIGILAW 111 (KER)

Judgment :- 1. The decree-holder in O.S. No. 161 of 1118 of the Crangannore Munsiff's court is the appellant in this case. The appeal relates to an order in execution refusing to enforce a security bond. The suit was one for redemption. It was decreed on 30.6.1119. The decree-holder deposited the mortgage amount on 9.11.1119 and applied for delivery of the property. The judgment-debtor appealed from the decree and the appellate court stayed delivery of the property till the disposal of the appeal on security being furnished by the judgment-debtor for mesne profits. The appeal was dismissed and the judgment-debtor filed a Second Appeal in the High Court and again applied for stay of execution. The High Court passed an interim order on 1.5.1122 staying execution of the decree on security. On 4.5.1122 a security bond was executed for answering the decree that might be passed in the second appeal. The decree-holder contended that the security should be for mesne profits from the property from the date of deposit of the mortgage amount as he was kept out of possession of the property. The High Court modified the original order and ordered the judgment-debtor to furnish security for mesne profits from the date of deposit of the mortgage amount for a period not exceeding one year from the date of the order at the rate of Rs. 175 a year. Accordingly a security bond was executed for mesne profits. The second appeal was subsequently dismissed. When the decree-holder filed an execution petition for the enforcement of the security bond the surety objected contending that he was not liable to pay any amount under the bond as the High Court decree did not make the judgment-debtor liable for mesne profits. The substance of the contention is that security bond was executed for answering the decree that might be passed by the High Court, that the liability of the surety is co-extensive with that of the judgment-debtor and that since the High Court did not make the judgment-debtor liable for mesne profits the surety also could not be made liable for the same. The Munsiff's Court accepted this contention and disallowed the prayer of the decree-holder to enforce the security bond. In appeal filed by him before the District Court the order of the trial court was confirmed. Hence this second appeal. 2. The Munsiff's Court accepted this contention and disallowed the prayer of the decree-holder to enforce the security bond. In appeal filed by him before the District Court the order of the trial court was confirmed. Hence this second appeal. 2. Both the lower courts have taken the view that the security bond was executed under 0.41, R.5 (3)(c) C.P.C. According to that rule security has to be given by the applicant for the due performance of the decree or order that may ultimately be binding upon him. Under this rule the court has jurisdiction to demand security only for the due performance of the decree or order that may ultimately be passed. In this case the plaintiff had made no claim in the suit for mesne profits from the date of deposit of the mortgage amount, and the decree of the trial court did not award him any mesne profits. Neither in the 1st appellate court nor in the second appellate court did the plaintiff make any claim for mesne profits. Although the High Court purported to act under 0.41 R.5 in demanding security as a condition for staying execution the security that was demanded by the 2nd order was not one for the due performance of the decree that might be passed by that court. It cannot therefore be said that the security in this case is one given under 0.41 R.5(3)(c) C.P.C. 3. The question therefore for consideration is whether the court has got jurisdiction to demand security from a party apart from the provisions contained in 0.41 R.5(3)(c). It was argued for the appellant that under S.145 of the Civil Procedure Code the court has got jurisdiction to take security for the payment of any money or for the fulfilment of any condition imposed on any person under the order of the court in any suit or in any proceeding. It was argued for the appellant that under S.145 of the Civil Procedure Code the court has got jurisdiction to take security for the payment of any money or for the fulfilment of any condition imposed on any person under the order of the court in any suit or in any proceeding. S.145 reads thus: "When any person has become liable as surety (a) for the performance of any decree or any part thereof or (b) for the restitution of any property taken in execution of a decree or (c) for the payment of any money or for the fulfilment of any condition imposed on any person under the 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 herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of S.47: Provided that such notice as the court in each case thinks sufficient has been given to the surety". According to the decree-holder this case will come under Cl. (c). But, for the applicability of that clause the surety must be liable for the payment of any money under an order of the court. In this case there is no order of the court directing payment of any money by the judgment-debtor and therefore the respondent cannot be said to be a surety for such payment. It is therefore doubtful whether this case will come under S.145 C.P.C. 4. Although there is no express provision in the Civil Procedure Code conferring jurisdiction on the court to take security bonds of this nature it has been held in various cases that the court has got inherent jurisdiction to take such bonds and to enforce the same summarily. Reference may be made to 2 Indian Appeals 219 (Sadasivan Pillai v. Ramayya Pillai). That was a suit for recovery of possession of property with mesne profits thereof up to the date of the suit. No claim was made in the suit for mesne profits from the date of suit and the decree also did not award mesne profits from the date of suit. That was a suit for recovery of possession of property with mesne profits thereof up to the date of the suit. No claim was made in the suit for mesne profits from the date of suit and the decree also did not award mesne profits from the date of suit. During the pendency of the appeal filed by the defendant he applied for the stay of execution of the decree and executed security bonds undertaking to pay mesne profits from the date of suit till the disposal of the appeal. The appeal went against him. The Privy Council held that although there was no decree for mesne profits the bonds could be enforced in execution. Their Lordships held that the court had general jurisdiction over the subject matter and could therefore enforce the bond. 42 All. 158 (Raj Raghubar Singh v. Jai Indra Bahadur Singh) is another case in which the same question was considered by the Privy Council. In that case the plaintiff obtained a decree for possession of certain properties and when she applied for execution of the decree she was ordered to give security for the mesne profits from the properties. Security was accordingly given by the plaintiff. The decree of the trial court was finally reversed by the Privy Council and the suit was dismissed except in the case of a few items. The question raised for consideration was whether the security bond could be enforced in execution and the Privy Council held that it could be so enforced. This decision was followed by the Privy Council in another case reported in AIR 1943 PC 189 Rohani Ramandhwaj v. Har Prasad). That also was a suit for recovery of possession of properties. The suit was decreed and pending appeal filed by the defendant the High Court ordered that the plaintiff should be put in possession of the properties on his executing a security bond for a particular amount towards mesne profits. The security bond was accordingly executed and the plaintiff was put in possession of the properties. Subsequently the High Court reversed the decree of the trial court. The question arose for consideration as to whether the security bond could be enforced in execution. Their Lordships held that the court could enforce the bond in execution in the exercise of its inherent power. 5. In 1936 Mad. Subsequently the High Court reversed the decree of the trial court. The question arose for consideration as to whether the security bond could be enforced in execution. Their Lordships held that the court could enforce the bond in execution in the exercise of its inherent power. 5. In 1936 Mad. 990 (Muthuswami Pillai v. Manikka Moopan) the plaintiff sued for a permanent injunction restraining the defendant from entering into possession of the plaint property. The plaintiff also applied for a temporary injunction during the pendency of the suit. At the hearing of the application for temporary injunction the parties entered into an agreement by which the defendant was given possession of the property during the pendency of the suit on his executing a surety bond to the effect that he would pay the mesne profits in case the plaintiff succeeded in the suit. The suit was ultimately decreed and the plaintiff sought to enforce the bond in execution. Following the decision in 2 Indian Appeals 219 Their Lordships held that the bond could be enforced in execution. Thier Lordships observed thus: "As stated by Their Lordships of the Privy Council in 2 Indian Appeals 219 the security bonds under such circumstances must be considered as proceedings in court importing a certain liability to be enforced in the suit against the defendant to that suit. Having undertaken this obligation it would not be open to defendant (1) or respondent (2) to resile from it and allege that proceedings were entirely irregular and that the court had no jurisdiction to enforce the terms which they had under taken to fulfil". In AIR 1949 Mad. 152 (Ramamurthi v. Sagaraju), the guardian of a minor withdrew money from court under 0.32 R.6 C.P.C. upon a security bond. The minor on coming of age sought to enforce the security. It was held that the bond could be enforced by the court in execution in the exercise of its inherent power. In 97 Indian Cases 787 (Sankunni Varier v. Vasudevan Nambudiripad) certain persons executed a surety bond to the court undertaking to produce whenever required certain movable properties of the judgment-debtor which had been attached in execution of the decree. They defaulted to produce the movables when required by the court. The decree-holder sought to enforce the bond in execution and to realise the value of the movables. They defaulted to produce the movables when required by the court. The decree-holder sought to enforce the bond in execution and to realise the value of the movables. It was held that although the case did not come within S. 145 C.P.C. the court had inherent power to enforce the bond in execution. In 20 TLJ 505 (Narayanan Pandalai v. Vishnu Namburi) the plaintiff obtained an order of injunction on furnishing security for 6 year's mesne profits. The suit was subsequently dismissed and the defendant sought to enforce the bond in execution. Following the Privy Council decision in 42 All. 158 it was held that the bond could be enforced in execution although the case would not come within the purview of S.109 of the Travancore C.P.C. corresponding to S.145 of the Indian C.P.C. The same view was held by the Cochin High Court in 23 Cochin 408 (Chevunni v. Lexmidas Muranji). In that case the plaintiff attached before judgment certain articles belonging to the defendant. A stranger preferred a claim to these articles and prayed for the return of the same. They were ordered to be returned on security. The appellant executed a security bond undertaking to satisfy the decree if the claim petition would be dismissed. The claim was subsequently dismissed. It was held that the bond must be deemed to have been taken in the exercise of the inherent power of the court and that the court could in exercise of that power summarily enforce it in execution. To the same effect is the ruling reported in 3 Cochin Q 114 (Muhammthu v. Sanku Iyer). In that case, in order to avoid the appointment of a receiver for the plaint property the defendants offered to furnish security for the mesne profits of the property and the appellant executed the security bond. The suit went against the defendants. It was held that the bond was taken by the court in the exercise of its inherent power and that it could be summarily enforced by the court. In the light of the above rulings the surety bond in question must be deemed to have been taken by the court in the exercise of its inherent power. These rulings also lay down that such bonds can be summarily enforced by the court without recourse to a fresh suit. 6. In the light of the above rulings the surety bond in question must be deemed to have been taken by the court in the exercise of its inherent power. These rulings also lay down that such bonds can be summarily enforced by the court without recourse to a fresh suit. 6. The next question for consideration is whether the surety has become liable under the bond. He has undertaken in the bond to pay mesne profits from the date of deposit of the mortgage amount for a period not exceeding one year from the date of the High Court order if the second appeal went against the defendant. The main contention of the defendant in the suit was that the property was not redeemable. That contention was repelled by the High Court also and the second appeal was dismissed although the order of the trial court with regard to costs was modified by the High Court. In the circumstances it cannot be said that the second appeal was not decided against the defendant. What the surety had undertaken in the bond was this: According to the terms of the bond the surety would be liable to pay the amount if the second appeal went against the defendant irrespective of the question whether the defendant would be liable for mesne profits under the decree to be passed by the High Court. The surety has also agreed in the bond that the amount might be realised from him in execution in the same manner in which the decree could be executed against the defendant. The lower courts have interpreted these words to mean that the liability of the surety would be co-extensive with that of the judgment-debtor. We do not find our way to agree with this view of the lower courts. Nowhere is it stated in the bond that the surety would be liable only to the extent to which the judgment-debtor would be liable under the decree to be passed by the High Court. 7. For the above reasons we hold that the surety is liable for the amount covered by the bond and that the decree-holder is entitled to have the bond enforced summarily in execution. We therefore set aside the orders of the lower courts and allow this second appeal with costs in all the courts. Allowed.