Muthu K.A.R Annamalai Chettiar v. N.V Sundaresa Iyer

This appeal arises out of a petition to enforce a security bond against the sureties to whom the judgment-debtor's properties were entrusted when they were attached in execution of the decree in O.S No. 191 of 1933 on the file of the Devakottah Sub-Court. The security bond was given on 13th August 1934. The execution petition during the pendency of which the security bond was given was struck off on 24th November 1934 as the sureties failed to produce the articles on 19th November 1934 at the sale held in execution of the decree. This petition to enforce the security bond was filed on 12th December 1938. In the meantime an execution petition which had been filed against the properties of the judgment-debtor on 8th July 1935 was struck off on 13th December 1935. The learned District Munsif dismissed the petition on the ground that it was barred by limitation as it was filed more than three years after the date on which the sureties failed to produce the articles and a right to enforce the security bond accrued to the decree-holder. There was an appeal and it was also dismissed. Hence this appeal.

Both Courts have referred to the ruling in Jamundas Ravuji Sait v. Krishnan (1). It is a decision of this Court by a single Judge in which a similar question had to be considered and it was held that the article that applied was Art. 181 and not Art. 182 of Schedule II of the Limitation Act. It is only if Art. 182 applied that there could be scope for considering the question whether the application filed against the judgment-debtor on 8th July 1935 would furnish a fresh starring point of limitation but if Art. 181 applied there could be no scope of considering that question. I entirely agree with the ruling in Jamundas Ravuji Sait v. Krishnan , that the article that applies is Art. 181. It is not in execution of decree that the claim is sought to be enforced as against the surety. When judgment-debtor's properties were attached they must have been left in the custody of the Court. The Court delivered them to the sureties because they executed a security bond. It is that security bond which is sought to be enforced by the Court at the instance of the decree-holder. It is the liability under the security bond that is sought to be enforced. In Madras this could be done in the execution proceedings itself by a summary procedure which enables the decree-holder to realise the amount payable under the bond. I therefore do not think that this could be considered to be an execution petition for the execution of the decree, though the summary remedy arises by reason of the bond executed to the Court in the course of the execution proceedings.

I therefore find that both the Courts were justified in dismissing the application as barred. The second appeal fails and is dismissed.

N.R.R