Rajasthan High Court - Jaipur
Ganga Lahari vs Har Narain And Ors. on 6 May, 1986
Equivalent citations: 1986WLN(UC)577
JUDGMENT Surendra Nath Bhargava, J.
1. This is a Civil Execution First Appeal against the order passed by Additional District Judge, Alwar, disposing of the objections raised by the appellant surety.
2. Har Narain and Prabhu Dayal had filed a suit and the appellant Ganga Lahari stood surety for the payment of Rs. 6,278/- for which an attachment order before judgment was issued under Order 38 Rule 5 CPC by a security bond executed by him on 20th December, 1963. Ultimately the suit was decreed on 1-4-1969 for a sum of Rs. 11,358,40 with costs against the respondents No. 10 and 11. The plaintiff-decree holders filed an execution petition on 21-8-1969 against the sppellant for executing the decree for a sum of Rs. 16,010.49 (entire decretal amount and interest and costs). The judgment-debtors preferred an appeal before this court against the decree dated 1-4-1969 and this court while disposing of the stay application, passed the following order:
8-10-1969. It is ordered that if the appellant furnishes adequate security to the satisfation of the execution court, for restitution, further proceedings shall be stayed in that Court. The respondents shall be heard by the execution court regarding the adequancy of the security. The security shall be furnished within 2 months, till then the execution of the decree shall be stayed. If default is made in furnishing the security, the stay order shall stand vacated.
3. In pursuance of this order, the appellant, instead of judgment-debtors, got furnished security of one Dayaram on 6-12-1969. The executing court ordered for issue of a warrant of attachment against the appellant on 3-2-1973. During the pendency of the appeal filed by the judgment debtors against the original decree, one Jaidev Singh represented the judgment-debtor Samiti which bad gone into liquidation and he being the Liquidator of the judgment-debtor Samiti, did not press the appeal as the decree-holders had submitted their claims before him and consequently, the High Court dismissed the appeal as not pressed. The judgment-debtors moved an application for restoration of that appeal, and submitted that the Liquidator had no authority to withdraw the appeal as liquidation proceedings had terminated and that the act of the Liquidator was collusive. Learned counsel for the appellant submitted that the restoration application was allowed and the appeal was restored to its original number. The appellant filed an objection petition before the executing court on 10-2-1973 submitting the following objections:
(1) No show cause notice was given to him as required by Section 145 CPC.
(2) The decree ought to have been executed as against the judgment debtors and if the decree had not been satisfied then only, the decree should have been executed against the surety appellant in view of Section 145 CPC and Section 126 and 128 of the Contract Act.
(3) A notice ought to have been issued under Order 21 Rule 22 CPC before issuing the attachment order.
(4) Attachment order has been issued against the goods of the partnership firm Ganga Lahari Surajmal, whereas the surety was only appellant Ganga Lahari, one of the partners of the firm.
4. Reply was also filed on behalf of the decree-holders on 24-3-73.
5. Learned Additional Disrtict Judge, Alwar by his order dated 7-3-74 disposed of the objection petition filed by the appellant. Since the execution petition was filed within one year of the decree, the objection regarding notice under Order 21 Rule 22 CPC has no force. The learned executing court has already upheld the objection that the goods of the partnership firm could not be attached. The learned executing court has also held that the appellant is only liable to the extent of Rs. 6278/- for which he had field surety even though the decree-holders had filed execution petition for the whole of the amount, amounting to Rs. 16,010.49 but he has rejected other objections raised by the appellant. Hence, this appeal.
6. Learned Counsel for the appellant has very vehemently submitted that notice must have been given to the appellant as provieed under Section 145 CPC. The notice is a condition precedent to the validity of the execution proceedings He has further submitted that the appellant had stood surety for attachment before judgment under Order 38 Rule 5 CPC only for sum of Rs. 6278/- whereas the decree-holders have taken out execution for the full decretal amount along with cost and interest etc, amounting to Rs. 16,010,49 against the appellant. He has further submitted that decree-holders should have executed the decree against the judgment-debtors and if the decree would not have been satisfied, then alone, it could have been executed against the appellant.
7. On the other hand, learned Counsel for the respondents has supported the order of the executing court and has submitted that there is nothing illegal or improper in the impugned order and therefore, this court should not interfere in appeal.
8. I have considered the submissions made at the bar and have also perused the record of the case, particularly impugned order.
9. As regards the objection regarding notice as provided by Section 145 CPC, the executing court had dismissed this objection because the appellant appear in the court on 3-9 1969 and also on subsequent dates and submitted application on 17-1-1973 asking for 16 days into to deposit the amount. Therefore, it amounted to notice as required by Section 145 CPC. Learned counsel for the appellant has placed reliance on Tankin v. Y. Sichi Si, AIR 1925 Rangoon 133, wherein it has been held that notice required to be given to a surety under this section is a condition precedent to the validity of the order for execution against him. No contrary view has been brought to my notice. A perusal of Section 145 CPC make it clear that a notice to the surety is a must before an attachment order is issued against him.
10. The next objection of the appellant is that the decree-holders should have first tried to get the decree executed against the judgment-debtors and if the decree had not been satisfied, then only the execution petition could have been filed against the surety. In this connection, reliance was placed on . My attention was also drawn to Form No. 6, Appendix-'F' to the First Schedule of the CPC which says that if there is any default on the part of the judgment-debtor, the court had to adjudge the amount to be paid by the surety and such an order can be enforced and executed under the provisions of Section 145 CPC. In this connection, reliance was placed on Agenda National v. Chowgule and Gia AIR 1967 Goa 88.
11. Thus. I am in agreement with the submissions made by the learned Counsel for the appellant. In the present case, no notice has been given as required by Section 145 CPC which is sine qua non and condition precedent before issuing an attachment order. The mere fact that the appellant had appeared in court cannot amount to notice under Section 145 CPC. In view of Order 21 Rule 35 CPC and Form No. 6. Appendix 'F' to the First Schedule of CPC and keeping in mind Section 128 of the Contract Act, I am of the view the decree ought to have been executed against the judgment debtors first and if the decree had not been fully satisfied, then only, the execution petition could have been filed against the surety appellant.
12. In this view of the matter, this appeal is allowed the impugned order dated 7-3-1974 passed by Additional District Judge, Alwar is set aside. The parties are left to bear their own costs.