R. Nanjunda Row 1St Counter Petitioner. v. Marwadi Dhammaji Sammiji Petitioner.

In this case the appellant and another person executed a security bond to the respondent who held a decree against one Narayana Row to obtain the release of the last mentioned from his imprisonment in execution. The bond was filed in the Lower Court with respondent's application for the release of Narayana Row; and his release was ordered under the proviso to Sect. 58 of the Code of Civil Procedure. The respondent subsequently applied for a warrant of arrest against appellant, as he failed to pay the decree amount in accordance with the provisions of the bond. This appeal is against the order of the Lower Court issuing warrant.

The appeal is argued here on the ground not apparently relied on in the Lower Court, that the bond having been given out of court can be enforced only by suit and not by proceedings in execution of the decree in connection with which it was given; had no doubt, if the facts were as this statement of the argument assumes them, the decision in Subbraya Pillai v. Sodananda Pandaram and observations of Spencer, J. in Kurugodappa v. Soegamma(2) would justify it. But the facts actually before us differ from those assumed in material respects.

Firstly as already stated the security bond was filed in court and was left there. The court no doubt was not asked to consider its terms or their propriety. But it was, certainly asked to take action, statedly on the ground that the bond had been given and, as the bond itself refers to the request which preceded its execution, it must be taken to have been presented to the court with the concurrence of the surety and judgment-debtor.

It must accordingly be regarded as matter of record in the court as much as if it had been executed to the court itself.

Secondly the bond provides that in case of the judgment-debtor's default, execution can be taken against him. It is argued that the parties cannot give the court jurisdiction by their consent. But the facts of the present case resemble those in Sadasiva Pillai…Plaintiff; v. Ramalinga Pillai…Defendant.(3), the circumstances that the bonds in question therein were executed to the court not affecting the general ground on which the decision proceeded that “the respondent had by proceedings in question, come under an obligation, which was capable of being enforced by proceedings in execution” and that “upon the ordinary principles of estoppel he could not be heard to say” that the relief claimed was not obtainable under the decree.

For these reasons the Lower Court's decision must be confirmed, the appeal against order being dismissed with costs.

K. V. S.Appeal dismissed.