Andhra HC (Pre-Telangana)
Yarlagadda Bapanna vs Devata China Yerakayya on 21 September, 1964
Equivalent citations: AIR1966AP151, AIR 1966 ANDHRA PRADESH 151
ORDER 1. The point involved in this appeal is whether the bond executed by the judgment-debtor as surety can he proceeded with in execution proceedings or a separate suit will have to be fifed to enforce the liability. The lower Court has relied on the observations in the Bench decision of this Court in Babulal v. Hyderabad Municipal Corporation 1900-2 Andh WR 510 at p. 514: (AIR 1961 Andh Pra 113 at p. 416) wherein it has been held "that if the decree-holder is trying to enforce the charge created, he could not do so under Section 115, Civil Procedure Code, and his only remedy would be by way of suit, but, if the decree-holder is not enforcing that charge but is trying to enforce the personal liability given by the surety, Section 145 would be applicable, and he would be entitled to execute the decree to that extent." It is to be noted that in the said decision no reference has been made to the Division Bench decision of the Madras High Court reported in Subramania Chettiar v. Raja of Ramnad, ILR 41 Madras 327 :(A1R 1918 Mad 442) wherein the learned Judges held that immoveable property given by a Judgment-debtor as security for the due performance of a decree, pursuant to an order made under Order XLI, Rule 5(3), Civil Procedure Code, can be realised in execution without attachment, the matter being one relating to execution within Section 47, Civil Procedure Code, and a separate suit does not lie. There is also a decision in Jagannath v. Ramachandra, AIR 1936 Mad 589 which follows the Division Bench decision in ILR 41 Mad 327: (AIR 1918 Mad 442). The view taken by a single Judge of the Madras High Court in Balakrishna Chettiar v. Krishnamurthi Aiyar, AIR 1927 Mad 416 is also opposed to the view taken by the Rench of this Court. Having regard to the importance of the question, it appears desirable to place this matter before a Bench for an authoritative pronouncement on this aspect. Let the matter be placed before the Hon'ble the Chief Justice for necessary orders. Case Note: Civil enforcement of security bond Sections 47, 145, 151 and Order 41 Rule 5 (3) (c) of Code of Civil Procedure, 1908 whether bond executed by judgment-debtor as surety can be proceeded in execution proceedings or separate suit has to be filed to enforce liability Section 145 applies to personal liability Section 145 does not prescribe enforcement of security bond such bond can be enforced in execution proceedings under Section 151 no separate suit necessary. JUDGMENT Chandra Reddy, C.J.
2. Although the security bond as such cannot be enforced under Section 145 C. P. C., which seems to apply to personal liability, Section 151 Civil Procedure Code comes to the rescue of the decree-holder who could request the court to enforce the bond in the exercise of its inherent Jurisdiction, when the bond is executed in favour of the Court. There is abundant authority for this position. See Subbarao v. Venkataraiu, . This position is not contested by the respondent.
3. This being the correct legal position, the decree-holder could have the bond enforced by virtue of Section 151 C.P.C. To that extent the order of the lower appellate Court is varied.
4. As regards the grievance of the appellant that the liability of the respondent as undertaken under the security bond should be coextensive with the amount of the decree to be passed, we do not think it is well founded. There can be little doubt that the respondent had undertaken the liability only to the tune of Rs. 15000/- and the clause rendering himself liable to any amount that might be finally decreed should be construed as meaning not exceeding Rs. 15000/-. We, therefore, cannot give effect to the contention bearing on the extent of the liability of the respondent.
5. The order of the lower appellate Court is modified accordingly. Parties will bear their own costs throughout.