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Andhra High Court · body

2009 DIGILAW 800 (AP)

Thota Venkatasubbaiah v. Ankireddy Sadasivareddy

2009-11-10

L.NARASIMHA REDDY

body2009
ORDER :- The petitioner filed OS No.157 of 2003 in the Court of Junior Civil Judge, Rajampet, against the 1st respondent for recovery of certain amount. Alleging that the 1st respondent was about to leave India, the petitioner filed IA No.409 of 2003, under Order 38 Rule 1 CPC, with a view to cause his arrest. The trial Court passed an order, directing the production of the 1st respondent in the Court. The 2nd respondent offered himself as a surety, to ensure the presence of the 1st respondent. Taking the same on record, the trial Court passed an order, directing release of the 1st respondent. Thereafter, the suit was decreed, ex parte, on 29.3.2005. 2. The petitioner filed IA No.329 of 2005, under Order 38 Rule 2 CPC with a prayer to issue notice to the 2nd respondent, directing him to cause production of the 1st respondent, and in default, to pay the decretal amount. The 2nd respondent alone was made party to the IA. Through its order dated 15.7.2009, the trial Court dismissed the IA. Hence, this CRP. 3. Learned Counsel for the petitioner submits that the trial Court failed to take into account the fact that, by offering himself as surety, the 2nd respondent has undertaken not only to ensure the presence of the defendant in the suit, but also the discharge of debt, under the decree. 4. The petitioner filed the suit for recovery of a sum of Rs.30,000/- with interest, on the basis of a promissory note, dated 12.7.1999. He filed IA under Order 38 Rule 1(a)(ii) CPC alleging that the sole defendant, i.e., the 1st respondent is likely to leave the jurisdiction of the Court. Notice was issued, and on receipt of the same, the 1st respondent came forward with a surety. The 2nd respondent offered himself as a surety, and an order was passed after execution of the surety. The suit was decreed, and thereafter the respondent filed the IA as mentioned above. 5. The filing of IA itself was untenable. The reason is that he did not implead the judgment-debtor in it. It was filed exclusively against the surety i.e., the 2nd respondent. Though law creates a facility to a decree-holder, to proceed against the judgment-debtor, or surety, all of them must be made parties in the concerned proceedings. 6. 5. The filing of IA itself was untenable. The reason is that he did not implead the judgment-debtor in it. It was filed exclusively against the surety i.e., the 2nd respondent. Though law creates a facility to a decree-holder, to proceed against the judgment-debtor, or surety, all of them must be made parties in the concerned proceedings. 6. This defect apart, the 2nd respondent, no doubt, offered himself as a surety, and executed the surety in Form No.2 of Appendix F of Schedule to CPC. His principal obligation under it is to ensure that the 1st respondent appears at any time, when called upon, while the suit is pending, and until satisfaction of the decree, that may be passed against him in the said suit. The petitioner did not insist on the appearance of the 1st respondent, at any point of time. On the other hand, his absence became handy for the petitioner to secure an ex parte decree. 7. The obligation for the 2nd respondent to ensure the appearance of the 1st respondent would have arisen, if only the petitioner filed an execution petition. Unless such proceedings are initiated, there did not exist any occasion for the 1st respondent to appear, much less the Court directed it. There again, the presence of the 1st respondent would have been necessary, in case an application for his arrest was filed. In the event of execution being initiated against any property, held by the 1st respondent, the presence of the latter, is almost unnecessary and inconsequential. As in the suit, his absence would have been beneficial for the petitioner. This being the state of affairs, the petitioner filed on application under Order 38 Rule 2 CPC with a prayer to direct the 2nd respondent to ensure the appearance of the 1st respondent or to pay the decretal amount. 8. There is another important fact, which comes in the way of the relief claimed by the petitioner. Few months after he offered himself as surety, for appearance of the 1st respondent, the 2nd respondent filed IA No.1217 of 2003 before the trial Court, under Rule 3 of Order 38 CPC. The suit was pending by that time. He stated that the 1st respondent is making preparation to leave India, and that the petitioner herein may take necessary steps. He has also prayed for relieving him from, as surety. The suit was pending by that time. He stated that the 1st respondent is making preparation to leave India, and that the petitioner herein may take necessary steps. He has also prayed for relieving him from, as surety. He is said to have insisted that the properties of the defendant be attached. The trial Court passed an order on 6.4.2004, observing that, once the 1st respondent is in India, the application filed by the 2nd respondent is unnecessary. At least, at that stage, the petitioner ought to have taken necessary steps to get the properties of the 1st respondent attached. No such steps were taken. 9. The trial Court has discussed all these aspects and arrived at a just and proper conclusion. This Court is not inclined to interfere with the same. The CRP is accordingly dismissed. 10. There shall be no order as to costs.