This Misc. First Ap­peal No. 4 of 1964, is directed against the order, dated 15-5-1964, by which the Subordinate Judge, Tripura, Agartala, rejected the objections filed by the surety, M/s. Howrah Insurance Co. Ltd., Calcutta, hereinafter referred to as the Company, under Section 47 of the Civil P. C., hereinafter called the Code, against the execution application filed by the respondent herein, Sachindra Mohan Das Gupta, for recovery of Rs. 41.525/-' in terms of Section 145 of the Code. 2. The history of this litigation is both aching and disgusting to the judi­cial conscience inasmuch as it reveals extreme callousness on the part of the management of the Company and M/s. Das Bank Ltd., Calcutta, hereinafter called the Bank, in the matter of run­ning the errands and supervising the functioning of the two concerns. The relevant facts establishing that charge will be narrated in the course of this judgment. If the way and the manner in which the two concerns have dis­charged their obligations connected with the litigation culminating in this appeal represent a sample of what is happen­ing in the other like concerns in the country, it would amount to a sad re­flection on the efficiency of the public Companies. 3. The facts bearing on this ap­peal have to be set out in details to per­mit appreciation of the points that arise for determination. On the basis of a mortgage deed executed by the respond­ent Das Gupta, on 10-2-1943, in favour of the Bank, a suit was instituted against him on 19-1-1950 for the recovery of the mortgage money on the original side of the Tripura High Court as it then was. Following the reorganisation of the Judi­cial Administration in the Territory of Tripura, the suit was transferred to the District Court for disposal. One Adhir Ranjan Datta, an employee of the Bank, was appointed by the District Court as Receiver on 21-1-1950 for managing the mortgaged property during the pendency of the suit. That property was com­prised of a Tea Garden called Ishan-chandrapur Tea Estate. The Court direct­ed the Receiver, Adhir Ranjan Datta, to furnish security in the sum of Rupees 50,000 by an order dated 20th of Febru­ary, 1950. The Receiver had taken over possession of the Tea Estate earlier on 22-1-1950. Adhir Ranjan Datta offered the Company as his surety and the Court agreed. The Court direct­ed the Receiver, Adhir Ranjan Datta, to furnish security in the sum of Rupees 50,000 by an order dated 20th of Febru­ary, 1950. The Receiver had taken over possession of the Tea Estate earlier on 22-1-1950. Adhir Ranjan Datta offered the Company as his surety and the Court agreed. The Company executed the surety bond on 26-8-50 in favour of the District Judge Shri R. M. Goswami and the same was accepted by the latter on 10-10-1950. The surety bond by its terms was- made effective retrospectively with effect from 22nd of January, 1950. 4. Much before the date of ex­ecution of the bond and its acceptance by the Court, but within only five weeks of the Receiver assuming possession of the Tea Estate, the Tea Estate had been burnt by an accidental fire due to, it was alleged, the utter negligence of the Receiver in managing its affairs and looking after its safety. Das Gupta, the mortgagor-owner of the Tea Estate, con­sequently moved an application before the Court claiming damages from the Receiver. That application came up for hearing before the Subordinate Judge, Agartala, to whom by then the suit had been transferred by the District Judge by virtue of powers vesting in him under Tripura (Courts) Order of 1950 which came into force on 31-12-1950. The Court of the Subordinate Judge, it may be mentioned, was created for the first time in the Territory pursuant to that Order of 1950. The Receiver, it appears, opposed the claim for damages but by an order dated 31-5-1956 the Court held him liable in the sum of Rs. 32,525/- and simultaneously directed him to pay that amount to Das Gupta within a period of two months, failing which recovery could be made by the latter from the Company m its capacity as surety. The Receiver as well as Das Gupta felt aggrieved with the order dated 31-5-1956 of the Subordinate Judge. The Re­ceiver consequently filed an appeal in this Court challenging the validity of the order dated 31-5-1956, while Das Gupta put in cross-objections claiming augmentation of the damages by another Rs. 9000/-. The two cases were disposed of by this Court by its judgment dated 18-12-1959. The Re­ceiver consequently filed an appeal in this Court challenging the validity of the order dated 31-5-1956, while Das Gupta put in cross-objections claiming augmentation of the damages by another Rs. 9000/-. The two cases were disposed of by this Court by its judgment dated 18-12-1959. The appeal of the Receiver was dismissed in default of appearance, while the cross-objections of Das Gupta were allowed in full and so the amount of the damages now stood at the grand figure of Rs. 41,525/-. The Court, how­ever, happened to mention in the con­cluding part of its order that the Re­ceiver shall be entitled to set off the amount of damages against the decree passed in the mortgage suit. The mort­gage suit had earlier been decreed on 31-5-1956 by the trial Court. Das Gupta did not feel reconciled to the direction of the Court that the Receiver shall be entitled to set off the damages against the decretal amount, and so moved a review application praying for expunction of that direction. He succeeded once again and this Court by its order dated 22-3-1961 expunged the aforemen­tioned direction. 4-A. After the amount ofdamages had been finally settled. Das Gupta filed an execution application in the Court of the Subordinate Judge on 4-10-1961 both against the Receiver and the Company. That application was re­gistered as execution case No. 39 of 1961, When the notice of that execution appli­cation was received by the Company, it filed an objection petition under Sec. 47 of the Code on 3-2-1962 and Misc. Case No. 24 of 1962 was registered on the basis thereof. The validity of all the objections raised by the Company was traversed by Das Gupta. Shri S. B. Laskar, the Subordinate Judge, dismis­sed the objection petition, as stated earlier, on 15-5-1964. Aggrieved by that order the Company has come up in ap­peal to this Court. 5. Out of a large number of ob­jections taken before the Subordinate Judge, on behalf of the Company, at the time of arguments, quite a good number of them were repeated in this Court. However, it is elementary principle that no party can be permitted to adopt a point, except if it happens to be of purely legal nature, unless it had been pleaded and the other party given an opportunity to meet it. However, it is elementary principle that no party can be permitted to adopt a point, except if it happens to be of purely legal nature, unless it had been pleaded and the other party given an opportunity to meet it. Therefore, it is necessary that the objections of the Company as set out in the objection petition itself should be reproduced here. The petition is comprised of six short paras, the sixth being only formal. The objections taken hi the first five paras are as under:- (1) The execution application cannot legally proceed against the Company; (2) The decree for recovery of Rs. 41,525/-, besides the costs of Rupees 94.12, not having been passed against the Company either by the trial Court or by the Judicial Commissioner's Court, it is not enforceable against the Com­pany; (3) The Execution of the decree against the Company is barred by time; (4) The order dated 22nd of March, 1961, made by the Judicial Commissioner (by which the review application of Das Gupta was accepted) is absolutely silent about the liability of the Company and so the amount cannot be recovered from it; and (5) Das Gupta cannot make recovery of the amount from the Company with­out first taking execution proceedings against the Receiver Ranjan Datta. I would like to dispose of these five ob­jections before proceeding to discuss the other points canvassed in this Court on behalf of the Company. 6. The first objection that the executed case cannot legally proceed against 'the Company is not intelligible. No reasons are given in support of the objection. As such I take that objection to be of no substance. 7. The second objection is with­out any legal basis. The Comany is being proceeded against not in its capa­city as judgment-debtor proper but as surety of the Receiver, Adhir Ranjan Datta. Section 145 of the Code provides, inter alia, that where any person has become liable as surety for the fulfillment of any condition imposed on any person under an order of the Court in any suit or in any proceedings 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. Evidently, this statutory pro­vision gives right to Das Gupta, who has secured an order against the Re­ceiver for recovery of damages, to rea­lise those damages from the surety furnished by the Receiver. The margi­nal note of Section 145 reads, "Enforce­ment of liability of surety". The Com­pany has not denied its status as that of surety and since the claim made against it in the execution application filed by Das Gupta falls within the ambit of Section 145, I have no option but to reject the objection raised. 8. The objection about limitation Is completely frivolous and was neither pressed before the executing Court nor in this Court. The appeal of the Re­ceiver was rejected by this Court on 18-12-1959 and the cross-objections of Das Gupta were allowed on the same day. The execution application was filed against the Receiver and the Company on 4-10-1961. Therefore, obviously the execution application is within time. It may be added that the order dated 18-12-1959 accepting the cross-objections was subsequently reviewed by this Court on 22-3-1961. Therefore, Das Gupta would be justified in contending that the period for making the execution applica­tion had begun to run from that date. Anyhow there can be no dispute or doubt on the point that the earliest date from which the time for execution began to run was 18-12-1959. 9. Objection entered at No. (4) actually is identical with that mentioned at No. (2) above. It can bear repetition to state that the Company was not a necessary party when the claim for re­covery of damages made by Das Gupta against the Receiver was under adjudi­cation. The liability of the Company arose after final orders in regard to that claim were made. Hence, I repel the (objection under consideration. 10. The last objection, namely, that Das Gupta cannot sue out execu­tion against the Company without first exhausting his remedies against the Re­ceiver, was not pressed in this Court Nor it appears to have any merit. The right to recover the amount of damages is available to Das Gupta concurrently against the Receiver and the Company and so it is not open to this Court, or, for that matter, to anybody else to tell Das Gupta to make an effort at recovery against the Receiver before proceeding against the Company. 11. The right to recover the amount of damages is available to Das Gupta concurrently against the Receiver and the Company and so it is not open to this Court, or, for that matter, to anybody else to tell Das Gupta to make an effort at recovery against the Receiver before proceeding against the Company. 11. It would follow from the above discussion that none of the points set out in the objection petition of Com­pany has any basis, legal or factual. Therefore, I affirm the finding of the Court below that objections merit re­jection. 12. I may now discuss in brief the points raised in this Court by Shri M. C. Dev Roy on behalf of the appel­lant. Firstly, he urged that the surety bond has always to be strictly constru­ed, and he cited AIR 1941 Mad 151 , Dharmapuram Mutt v. Muhamad Usman. Shri R. Ghosh, representing Das Gupta, had no fight with the proposition that the surety bond given under Section 145 of the Code has to be interpreted strict­ly. However, Shri Dev Roy was unable to indicate how that principle helped him in the instant case. It is very plain­ly mentioned in the bond that the surety shall reimburse "any loss or damage oc­casioned by any act or default of -the Receiver in relation to his duties as such Receiver ............". The Company had assumed the liability for reimbursement retrospectively with effect from 22nd of January, 1950. The fire which occasion­ed the damage to the Tea Estate blazed on 26-2-1950 and the finding of this court is that the fire occurred due to negligence of Receiver in managing the Tea Estate. Therefore, the Company is clearly liable for the amount of damages adjudged against the Receiver. 13. The next point urged was that it was obligatory for Das Gupta to implead the Company along with the Receiver in the proceedings initiated by him for determination of the damages occasioned to the Tea Estate allegedly on account of the negligence and default of the latter (the Receiver), and that since he failed to take that precaution he cannot now recover the damages from the Company in its capacity as surety. No provision of law or judicial prece­dent was cited to support that point. No provision of law or judicial prece­dent was cited to support that point. It was urged, however, that principles of natural justice demand that adjudication about the damages allegedly caused by the negligence of Receiver should be made in the presence of the surety. Here, again, the learned counsel was un­able to reinforce his submission by any authority. In the absence of any allega­tion of collusion between the Receiver and Das Gupta, it appears that the objection is not tenable in terms of the surety bond. If the argument were to prevail then in each case of a surety bond furnished pursuant to an order of the Court in a pending proceeding, the surety will have to be impleaded as a party in all stages of the proceedings. Such a situation cannot be looked at with equanimity. As an instance, if in an appeal filed in the High Court by a judgment-debtor the execution of the decree is stayed on furnishing surety in terms of Order 41, Rule 5, of the Code, does it mean that the surety should be brought on the record of the appeal as a party? I think the argument is self-defeating and so has to be negatived. 14. This takes me to the consi­deration of the third point raised by Shri Dev Roy. He urged that the surety bond could be enforced by its own terms either by Shri R. M. Goswami, the Dis­trict Judge, Agartala, to whom it was furnished in the first instance, or by his successor or successors-in-office or as­signs, and that since the Subordinate Judge, who decreed the mortgage suit, cannot be said to be either the successor-in-office or an assign of the District Judge, the liability of the surety under the surety bond is not enforceable at the instance of the Court of Subordinate Judge. The file of the mortgage suit was requisitioned in this Court to deter­mine how the suit had been adjudicat­ed upon by the Subordinate Judge though it was pending in the Court of the District Judge at the time the bond was furnished. The records revealed that by order No. 33, dated 26-2-1951, the District Judge had sent the file of the suit to the Subordinate Judge for disposal. The records revealed that by order No. 33, dated 26-2-1951, the District Judge had sent the file of the suit to the Subordinate Judge for disposal. It was on 31-12-1950, it may be repeated, that the Tripura (Courts)" Order, 1950, creating the Court of the Subordinate Judge for the first time In this Territory came into force. Para 27 of the Order gives authority to the Dis­trict Judge to distribute any civil busi­ness cognizable by his Court among the Courts under his control. Para 26 there­of states that subject to the general superintendence and control of the Judi­cial Commissioner, the District Judge shall have control over all the Civil Courts within the local limits of his jurisdiction. Therefore, the District Judge had the authority to assign the mortgage suit brought by the Bank against Das Gupta for disposal to the Court of the Subordinate Judge. This power he could also exercise under Sec­tion 24 of the Code. The suit having been transferred by the District Judge to the Court of the Subordinate Judge, the latter Court obviously became his "successor" as well as "assign" within the meaning of those expressions as used in Section 145 of the Code. Shri R. Ghosh cited the case reported in AIR 1960 Andh Pra 507, G. Bapaiah v. V. Subbaiah, to support his contention that the Subordinate Judge is in law the suc­cessor as well as assign of the District Judge for the purpose of the surety bond furnished by the Company. The facts of the reported case are that in a suit pending in the Court of the District Munsiff a surety filed security for mesne profits. Subsequently, the plaint was re­turned by the District Munsiff to the plaintiff for presentation to the Court having jurisdiction in the matter, and then that plaint was presented in the Court of the Subordinate Judge. The question arose whether the surety bond filed in the Court of the District Munsiff could be availed of in the Court of the Subordinate Judge. The High Court held that it could be availed of. It will be noticed that our case stands on a much higher footing. Here the plaint was never returned to the Bank by the District Judge for presentation to the Court of the Subordinate Judge. The High Court held that it could be availed of. It will be noticed that our case stands on a much higher footing. Here the plaint was never returned to the Bank by the District Judge for presentation to the Court of the Subordinate Judge. The suit was actually made over by the Dis­trict Judge on his own initiative to the Court of the Subordinate Judge by virtue of the power of transfer vesting in him. Therefore, the Subordinate Judge was clearly a successor as well as an assign of the District Judge re: the surety bond furnished in the Court of the District Judge by the Company. Therefore, the third point raised in this Court by Shri Dev Roy also fails. 15. Lastly, it was urged by the learned counsel that the Company stood discharged from its obligations as surety in terms of Section 143 of the Contract Act. That section provides that any guarantee which the creditor has ob­tained by means of keeping silence as to a material circumstance is invalid. Firstly, I am not convinced that S. 143i has any application to a bond furnished by a person to the Court pursuant to its orders. And in the second instance, the objection based on Section 143 is not purely legal. It is a mixed question of fact and law. And since the plea of discharge had not been raised in the ob­jection petition, the appellant cannot be permitted to raise it for the first time in this Court. Thirdly, it was admitted at the bar. that the Company had filed a Title Suit No. 34 of 1966, in the Court of the Subordinate Judge, Agartala, for cancellation of the surety bond on the footing that it stood vitiated by fraud etc. Section 143 of the Contract Act also in a way relates to an objection which is of the nature of fraud. Shri Dev Roy frankly admitted in this Court that since the aforementioned Title Suit had been founded on the plea of fraud etc., he had deliberately not raised that objection in this Court. If so, I fail to see how could Shri Dev Roy raise a point in this Court on the basis of Sec­tion 143. 16. In view of the- conclusions recorded above, the appeal fails and is dismissed. If so, I fail to see how could Shri Dev Roy raise a point in this Court on the basis of Sec­tion 143. 16. In view of the- conclusions recorded above, the appeal fails and is dismissed. Taking however all the re­levant circumstances into consideration, I leave the parties to bear their own costs in this Court. 17. I may now detail a few facts demonstrating the lapses of which the Company and the Bank have been guilty during the course of this litigation. The Tea Estate was extensively damaged consequent on the fire which enveloped the Estate on 26-2-1950, which was only a month and four days after the Re­ceiver had taken possession of the Estate. The Receiver was directed by the Court to furnish security in the sum of no less than Rs. 50.000/'- on 20th of February, 1950. The surety bond was ex­ecuted by the Company on 26-8-50 and it was accepted by the District Judge on 10-10-50, both of which events took place a long time after the Estate was damag­ed. It was specifically mentioned in the surety bond that the liability of the Company shall take effect retrospective­ly from 22nd of January, 1950, the date on which the Receiver took over pos­session of the Estate. It is surprising that Shri H. N. Sarkar, the Secretary of the Company, who executed the surety bond, should have not made any en­quiries if the Receiver had placed him­self under some liability in the matter of damages done to the Tea Estate in between 22-1-1950 and 26-8-1950. The fact of extensive fire resulting in a damage of the magnitude of Rs. 41,525/-remained unnoticed by the Secretary of the Company until the date the surety bond was executed or even by the date it was accepted by the court a month and a half later. And the astonishing feature is that the plea of fraud was not adopted in the objection petition filed in the Court of the Subordinate Judge on 4-10-1961. An application on the record of the present appeal reveals that it was during the course of the trial of the objection petition that the Company learnt for the first time that the com­pensation adjudged against the Receiver was due to fire in February, 1950, res­ulting from the mismanagement by Re­ceiver. On the face of it, that allega­tion is incredible. An application on the record of the present appeal reveals that it was during the course of the trial of the objection petition that the Company learnt for the first time that the com­pensation adjudged against the Receiver was due to fire in February, 1950, res­ulting from the mismanagement by Re­ceiver. On the face of it, that allega­tion is incredible. Indeed that admis­sion has the implication that the Com­pany did not care to find out when it filed the objection petition on 4-10-1961 how the Receiver had been adjudged lia­ble to damages. It was essential for the Company to determine the facts of which Receiver, had been held liable to decide the further question if those facts fell within the ambit of surety bond dated 26-8-1950. Admittedly, no such steps were taken. The Office-bearers of the Company are expected to display much more vigilance than what was exhibited in the instant case. Before executing the surety bond in the sum of Rs. 50.000/-, the status of the Receiver as also the extent of the Tea Estate for which he had been appointed a Receiver should have been ascertained by some­one on behalf of the Company. If that precaution had been taken, it would have been discovered on 26-8-1950, the date of the execution of the surety bond, that the Tea Estate had already been reduced to ashes and that the Receiver did not own property worth Rs. 50.000/-a fact candidly admitted in this court by both the counsel. In such an event the liability of the Company would not have been accepted in any case retros­pectively from 22-1-1950. On account of the extreme negligence exhibited by the Office-bearers of the Company, the latter has suffered an immense loss which will, of course, fall on the shoulders of the share-holders. It is all to be re­gretted. 18. I was struck aghast to learn during the course of the arguments in this appeal that the decree secured by the Bank on 31-5-1956 cannot be realis­ed by it because no execution applica­tion had been made within the period allowed by law. I have not words strong enough to express my abhorrence at the laches on the part of the Bank. The share-holders are poorer by the amount for which the suit was decreed, and it was a substantial sum at that. Das Gupta, the mortgagor, must gloat over his achievements. I have not words strong enough to express my abhorrence at the laches on the part of the Bank. The share-holders are poorer by the amount for which the suit was decreed, and it was a substantial sum at that. Das Gupta, the mortgagor, must gloat over his achievements. The mortgage debt, raised by him in early 1943, he has not to repay, the decree based" on it having become time barred. He would now recover a sum as big as Rs. 41,525/-, besides some costs, from the Company. With that amount he can set up another Tea Estate. Appeal dismissed.