N.N Sharma, J.:— Both these appeals are being disposed of by this common judgment as these centare round the same legal question about the maintainability of execution-application by appellant against respondent surety.
2. The impugned judgments were recorded by Sri O.P Garg, learned Second Civil Judge, Kanpur on 8-9-1973 in Civil Appeals Nos. 245 and 246 of 1972 arising out of Execution Applications Nos. 44 and 49 of 1969 who upheld the orders recorded by IInd Additional Munsif, Kanpur who dismissed the execution-applications of decree-holder under Section 145 of Code of Civil Procedure as not maintainable. It was found that surety was not responsible to pay the decretal amount. Decree-holder appellant filed Misc. Case No. 276 of 1963 under Section 7-B of U.P (Temporary) Rent Control and Eviction Act, 1947 (Act No. Ill of 1947) against Smt. Sarla Devi, daughter-in-law of respondent.
3. Smt. Sarla Devi put in appearance in the miscellaneous case preferred by landlady and wanted to file objection but she was under the necessity to furnish security or to deposit the amount in cash as claimed by landlady under Section 7-B(7) of the aforesaid Act.
4. Smt. Krishna Devi, mother-in-law of tenant, stood as surety to enable the tenant to file the objection against the application under Section 7-B. The proceedings under Section 7-B were converted into a regular suit after the tenant had filed the security. It was registered as a Regular Suit No. 810 of 1965. It was eventually decreed and the first appeal preferred by tenant failed.
5. A suit under Section 5(4) of U.P Act III of 1947 was also filed by tenant for fixation of rent.
6. Landlady filed an execution-application to enforce the liability under the decree against the surety Smt. Krishna Devi under Section 145 of the Code of Civil Procedure;
7. The objection preferred by respondent was that the security was filed only for the purpose of proceeding under Section 7-B of the Act and did not render the surety liable to pay to decretal amount of the regular suit. Other ancillary objections were also raised which are not necessary to be detailed for the disposal of these appeals.
8. It appears that Sri K.K Srivastava, the then learned IInd Additional Munsif, Kanpur held that the decree-holder was not entitled to enforce the decree against the surety. The decree-holder went up in appeal and on 26-9-1970, Sri Santosh Kumar Misra, the then IInd Addl. Civil Judge, Kanpur set aside the order of the executing Court and remanded the case for rehearing and disposal according to the observations in the body of judgment. Thereafter, the case was disposed of by Sri Shailendra Saxena, the then IInd Addl. Munsif, Kanpur, who dismissed the execution-application as not maintainable.
9. The same view was upheld in appeal.
10. I have heard Sri R.K Kakkar and Sri S.K Kakkar, learned Advocates for appellant and perused the record.
11. Sri V.B.L Srivastava, learned Counsel for the respondent, despite all efforts, did not appear in the case.
12. The only question which falls to be determined in these appeals is whether the surety bond furnished at the stage of application under Section 7-B of Act III of 1947 is enforceable against the surety in execution of the decree in which the aforesaid proceedings may eventually culminate?
13. The appeal is allowed for the following reasons:—
(i) In Execution Civil Appeal No. 9 of 1970, Sri Santosh Kumar Mishra, learned IInd Addl. Civil Judge, Kanpur on 26-9-1970 found that the surety was liable. In this connection, he referred to Section 128 of Indian Contract Act and AIR 1954 PEPSU 3 (Vol. 41, C.N 2), (a) Civil P.G (1908) and Amulya Ratan decree-holder v. Prasad Chandra Kar., AIR 1936 Calcutta 143. So the categorical finding recorded by him was that the application was maintainable and thesurety was liable. The case was sent back to the Court below to be decided in the light of the aforesaid observations in the body of judgment. That judgment became final and no appeal etc. was preferred against it.
When an Appellate Court remands the case, the scope of Trial Court is to function within the ambit of the remand order. The observations made by learned Appellate Court were transgressed by learned Additional Munsif. This is impermissible.
(ii) Both the Courts below have simply ignored the contractual liability of surety which flowed from the bond furnished by her. The surety deed is dated 10-5-1963 and it specifically refers to Misc. Case No. 276 of 1963 under Section 7-B, Smt. Krishna Devi v. Smt. Sarla Devi, which was pending in the Court of Munsif City, Kanpur, on the date of execution of the bond. Smt. Krishna Devi surety rendered herself liable under the decree which was to be eventually passed in these proceedings against Smt. Sarla Devi. The surety and her legal heirs were made liable to pay the decretal amount and interest in case of default by judgment-debtor without any objection. After such undertaking it is difficult to hold that Smt. Krishna Devi would have raised an objection about the maintainability of the execution-application to the extent of amount for which she stood surety. Learned Court below relied upon Tutsi Misir v. Bindeshri Misir, reported in AIR 1936 Alld 593. In that case, security was given while the judgment-debtor applied for setting aside the ex parte decree. This security was offered under Section 17(1), Provincial Small Cause Courts Act, 1887. The security was given to the satisfaction of the Court up to the period ex parte decree was set aside. It could not to availed of by the decree-holder when the decree was passed in the tegular suit to which the surety was not a party. Obviously, the restoration proceedings on the miscellaneous side or different from the proceedings on regular side. It was not a case under Section 7-B of Act HI of 1947.
14. Reliance was also placed upon Balkrishna Gupta v. Brijeshwari Prasad, reported in 1964 ALJ 175. It was held that the payment in proceedings under Section 7-B sub-clause (iv) was not identical with the payment under Section 7-B sub-clause (vii) of the said Act. In that case, the payment was done by the tenant and raised a plea about the title of landlord who was entitled to receive the rent. There were rival claimants in that case. The disputed point in that case was whether such payments were made by tenant within one month of demand so as to save him from ejectment.
15. A look at Section 7-B of the aforesaid Act shows that the said section provides a summary procedure for eviction of tenants in default of payment of rent. If the amount is paid by tenant within the time allowed in the notice, he can save ejectment and the amount deposited has to be paid to the landlord in satisfaction of the arrears vide Section 7(4). If the tenant appeared and filed objection, then the objection is entertain able only on deposit of cost in Court or furnishing security to the satisfaction of Court. On payment of necessary court-fee by the landlord, the application is to be treated as a plaint. Obviously, the decree has to be drawn after bearing the parties and means the formal expression of an adjudication which, so far a regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit vide Section 2(2) of Civil Procedure Code. Prior to the drawing of the decree, the earlier proceedings are terminable with an order as contemplated by Section 7-B sub-clauses (5) and (6) of the Act.
16. I have referred to surety bond which does not refer to any order but specifically mentioned the decree which was to be eventually passed in the suit. So there was a specific undertaking given by the surety to the Court which renders even her heirs liable to pay the decretal amount. There is nothing in Section 145 of Code of Civil Procedure to cut down the extent of liability of the surety which was co-extensive with principal debtor vide Section 128 of Indian Contract Act and the execution-applications are maintainable against her and heirs etc. as laid down in the surety bond itself. In this view of the matter, both the appeals are allowed and the impugned orders are set aside. The case is remanded to the executing Court to dispose of these applications in accordance with law. Costs easy.
17. Appeals allowed.