Kommareddi Subbareddi v. Koliipara Veerayya Tata

Sadasiva Aiyar, J. — The security bond given by the appellants does not fall under any of the cl. (a), (b) or (c) of Sect. 145, Civil Procedure Code. It is a special kind of surety bond taken by the Court in accordance with O. 21, R. 43, Civil Procedure Code, as materially altered by this High Court under its rule-making powers and is concerned with the safe custody of “articles which cannot be conveniently removed” from the place of their attachment in execution. It has nothing to do with Sect. 145, Civil Procedure Code. Cl. (b) of Sect. 145 refers to restitution of property “taken in execution” that is, taken possession of by a party in execution in accordance with the terms of the decree or order in his favour and not to properties taken possession of by the Court through attachment in execution of a decree.

The decree-holder cannot execute his decree against a surety who becomes one under O. 21, R. 43, in respect of properties taken possession of by the Court Amin. It is only a surety who comes under Sect. 145 that could be proceeded against in execution as, if he was a party to the decree. The Court should, in a case like the present, assign the bond in favour of the decree-holder in whose interests (though not for whose direct benefit) the bond was taken. The Lower Court's orders permitting the decree-holder to execute his decree against the appellants to the extent of the amount mentioned in the surety bond cannot therefore be upheld and are set aside. In substitution thereof, I would direct that the Munsif's Court do assign the bond in favour of the decree-holder. As the bond is nearly three years old, it is desirable that the assignment should be made soon. The parties will bear their respective costs throughout.

Spencer, J.—As the words “where and in so far as a decree is varied or reversed” occurring in Sect. 144, Civil Procedure Code, are not repeated in Sect. 145, I am inclined to read the word ‘restitution’ in Sect. 145 (b), as not confined to the narrow sense in which it is used in Sect. 144, namely, adjustment of the rights of parties inter se arising out of the variation of a decree in appeal or otherwise, but in the wide and general sense of ‘restoration’ or making good that which is deficient. If that is so, the Court can proceed in execution against the surety who has failed to perform his conditional undertaking to produce the judgment-debtor's property before the Court when called upon to do so. In the Code of Civil Procedure there is no provision similar to that in Sect. 35 of the Guardians and Wards Act for the assignment of a security bond for the purpose of a suit being brought to enforce its terms.

The course is however one which it must be within the inherent power of the Court in whose favour the bond is written to adopt, and I think it would be convenient to adopt it in the circum^ stances of the present case. The words “may be executed” in Sect. 145 seem to indicate that proceeding in execution is only an alternative remedy and that the other remedy of assignment of the security bond is not excluded.

I therefore agree with the order proposed by my learned brother.

K.V.S