JOHN et al , Appellants, and CHARLES DE SILVA , Respondent

105-NLR-NLR-V-51-JOHN-et-al-Appellants-and-CHARLES-DE-SILVA-Respondent.pdf


JA i JstJLEKB C.J.—John et at. v. Charles de Silva
443
1950 Present: Jayetileke C.J., Gnnaseksra J. and Swan J.JOHN et al. Appellants, and CHARLES DE SILVA, RespondentS. C. 22— D. C. Oaiie {Inly.), X 247
('ivil Procedure Code—Execution of bond by surety—Circumstances in which section
348 is applicable.
Section 348 of the Civil Procedure Code applies only where a liability wasincurred as surety for the performance of a decree after the institution of theaction and before the entering of the decree. Its application is limited tosecurity taken before the Court under the provisions of the Code.
.A.PPEAT, from an order of the District Court, Galle. This case wasreferred by Dins and Pulle JJ. for consideration by a fuller Bench,under section 48a of the Courts Ordinance (as amended by the Courts(Amendment) Act, No. 52 of 1949).
D. S. Jayaunckrama, with Bienzie Wijeratne,for the sureties appellants.
O.P. J. Kurukulasuriya, with D. W. F. Jayesekeraand B. 8. Dias, forplaintiff respondent.
Cur. adv. wit.
July 26,1950. Jayetileke C.J.—
In action No. 40,699 of the Magistrate’s Court of Galle the defendc-nisi«»pvuacu«is anu ii-ro others with tiieli oi certain articlesenumerated in a list marked A, criminal trespass and hurt.
On the date of trial it was agreed between the parties as follows:—
(1) That the respondents should institute an action against the de-fendants for a declaration of title to the goods referred to in thelist marked A.
{'2) That tho 1st defendant should give security in a sum of Rs. 4,000,take charge of the said goods, and keep them in his custody tillthe said action was decided.
JAYETILEKE C.3.—John tX oZ. v. Charles de Silva
In pursuance of the said agreement the defendants executed two bondsbearing numbers 2203 and 2204 dated June 22, 1944, attested byA. M. Saeed, Notary Public, and took charge of the said goods, and the re-spondents instituted this action on August 25,1944, against the defendantfor a declaration of title to the said goods and for the recovery of damages.The appellants became parties to bond 2204 as sureties. The materialportions of the bond arc as follows:—
“ We Bon Simon Henry Senanayake, as principal,and H.Liyanagc
John, and H. Liyanage Sopi Nona as sureties are jointly andseverally held and firmly bound unto A. Ganapathi Pillai, theChief Clerk of the Magistrate's Court of Galle, or the Chief Clerkfor the time being of the said Court in the sum of Rs. 3,000,for the payment of which we bind ourselves our heirs ….and we the said sureties …. for securing the paymentof the said sum hereby mortgage and hypothecate . . . .”
The oondition of this obligation is such that if the above bounden
principal …. will restore the articles referred to aboveor pay their value to the party entitled in accordance with theorder of Court in the proposed civil action undertaken to bebrought by the 1 st and 7th accused or either of them as aforesaid. .. . then this obligation to be void and of no effect,
otherwise to remain in full force and virtue.
After a lengthy trial judgment was entered in favour of the respondentsdeclaring them entitled to the said goods and for Rs. 7,850 as damagesup to January 23, 1947, mid further damages at Rs. 215 a month tillthey are restored to possession of the said goods. The defendants failedto deliver the said goods to the respondents or to pay their value whichwas assessed at Rs. 2,500, and the respondents moved to execute thedecree against the appellants, under section 348 of the Civil ProcedureCode. The section is in these terms:—
“ Whenever a person has before the passing of a decroe in an originalaction become liable as surety for the performance of the same orof any part thereof, the decree may be executed against him tothe extent to which he has rendered himself liable in the samemanner as a decree may be executed against the judgment-debtor, upon application made by the judgment-creditor to thecourt for that purpose by a petition to which the person soughtto be made liable as surety shall be named respondent ”,
The appellants opposed the application on the ground that the sectionapplied, only to seourity furnished to the court which entered the decree.After hearing argument the learned District Judge allowed the application.The present appeal is against that order. The appeal came up forhearing before Bias and Pulle JJ. who thought that the question was onewhich should be considered by a Bench of three Judges. At the argumentbefore us Counsel for the appellants relied entirely on the judgment ofthis Court in Wanigasooriya v. The Hiniduma Co-operative Society *.
In that oase the appellant executed a mortgage bond as security forthe due performance by the second respondent of his duties as manager1 (1949) SI Ar. L. B. 13S.
JAYETILEKE C.JJohn et al. v. Oharlos do Silva
446
of a 00-operative store. A dispute between the 1st and 2nd respondentswas referred to arbitration under the Co-operative Societies Ordinanceand an award was made against the 2nd respondent. Writ was issuedbut was returned to Court. Thereafter the 1st respondent moved for &notice on the 2nd respondent in terms of section 348 of the Civil Proce-dure Code to show cause why the property hypothecated should not besold. It was hold that section 348 applied only where a liability wasincurred as surety for the performance of a decree after the institutionof the action and before the entering of the decree. Counsel for therespondents differentiated that case on the ground that the securitywas not given for the performance of a decree, and he pointed out thatit was not necessary for the purpose of that appeal to decide that section348 applies only to security given after the institution of the action. Hecontended that the language of the section was wide enough to include asurety bond given before the institution of the action.
The Civil Procedure Code is divided into ten parts under differentheadings and these parts are sub-divided into Chapters under differentheadings. Part I deals with actions in general. It is sub-divided into 25Chapters and section 348 is in Chapter 22 in which all the sections relatingto execution are grouped. An examination of the section shows that itprovides a summary remedy for the enforcement ofthe liability of a suretywho has given security for the performance of a decree or any part thereof.It does not create a liability but it provides the machinery for the enforce-ment of the liability of the surety. If there are provisions in the Codewhich give the Court the power to call upon a party to give security forthe performance of the decree or any part of it, the operation of section348 must, in my view, be limited to the enforcement of security taken inthe exercise of suoh power. Section 348 docs not indicate the classes ofsurety bonds to whioh it applies. The words “ for the performance ofthedecree or any part thereof ” can bo referred to specific provisions of theCode, for instanee, sections 650, 654, 706 and 763. When a surety makeshimself liable under any one of these sections by giving security, section348 enables the party for whose benefit the security was given to enforcethe security by execution proceedings in the same manner as if the suretywas a party to the decree or order in respect of which security was given.A Court has no power to order execution against a person who is not aparty to the action unless he submits to its jurisdiction. A surety who isnot a party to the aotion makes himself amenable to the jurisdiction of thecourt in execution proceedings not by virtue of the provisions of section348 but by giving security in the face of the court,. The application ofseotion 348 should, therefore, be limited to security taken before the courtunder the provisions of the Code. This view has the support of twojudgments of the High Court of Madras under the corresponding sectionsof The Indian Civil Procedure Codes of 1882 and 1908.
The language of section 348 is almost identical with that, of section 253of The Indian Civil Procedure Code Act 14 of 1882, It reads :—
“ Whenever a person has, before the passing of a decree in an originalsuit, become liable as surety for the performance of the same or anypart thereof the decree may be executed against him to the extent to
446
JAYETILEKE C.J.—John 4 ai. v. Charles de Silva
which he haa rendered himself liable in the same manner as the decreemay be executed against the defendant …. Provided that suchnotice in writing as the Court in each case thinks sufficient has beengiven to the surety.”
In Thirumalai v. Ramayyer1 the question arose whether section 253could be availed of when security had been given on behalf of the respond-ent to an appeal under section 546 for the due performance of the decree.In the course of his judgment Muttuswamy Aiyer J. said:—
" The sections which relate to the liability of the surety and whichprovide for its enforcement are not one and the same whether inAct 8 of 1859 or in the present Code of Civil Procedure. In the formerenactment ss. 76 and 83 indicated how a surety became liable for thefulfilment of the original decree …. In the present Code sections479, 484 and 546 correspond with them. In the former it was section204 which provided the machinery for its enforcement whilst in thelatter the machinery is contained in two sections 253 and 583. Thewords of section 253 ‘whenever a person has before thepassing of adeoree in an originalsuit become liable for the performanceof the same ’ only premise the case in reference to which the rule ofprocedure is prescribed, and they do not support the remark that theliability and the machinery for its enforcement are blended together ”.
“The obligation which a surety undertakes is an obligation tofulfil the decree which may be passed against the defendant or theappellant in the original suitor in appeal and the obligation is contractedbefore the Court and is as much a matter of record as the decree undertakento be fulfilled ”.
The sections in our Code wliich correspond with sections 479,484 and546 referred to in the passage quotedan- 650, 654 and 763
respectively.
This judgment was followed in Subaraya PiUai v. Sathawinda Pandora *,in which the question for consideration was whether a surety bond takenby the judgment creditor outside the court could Ik*- enforced undersection 145 of Act 5 of 1908. Section 145 is in these terms **
** Where any person has become liable as surety
(а)for the performance of any decree or any part thereof, or
(б)for the restitution of any property taken in execution of a decree, or(c) for the payment of any money or for the fulfilment of any condition
imposed on any person under an order of the Court- in any suit-or in any proceeding consequent thereon,
j.-.-w or order may be -= – ..0-i.ieu- mm t< ► the extent towhich he has rendered himself personally liable in the mannerherein provided for theexecution of decrees, and such person shall,for the purposes of appeal, be deemed a party within the meaningof section 47. Provided that such notice as the Court in eachcase thinks sufficient has been given to the surety. ”
11. L. R. 18 Maine 1.- A. T. R. [1919) Madras 813.
Co'-ta u. Garden (.S'. 1. I'olictt)
447
Napier J. said:—
" As at present advised I think that considering that the languageof the various sub-sections can be referred to specific provisions of theCode and considering that the object of the section is to allow executionagainst a person who is not a party to the suit or legal representativeit is more proper to confine it to oases where the liability has beonentered in the face of the Court, or has been recorded by the Court inaccordance with the provisions of the Code. ”
Sadasiva Aiyar J. said :—
“ I do not think that the faot that the Court itself stayed the executionon the report made to it of security having been given outside theCourt would enable the Court to allow the security to be realised inexecution. The only security which oould be so realised is one to befurnished to the Court, or at least filed in Court. ”
I would, accordingly, set aside the order appealed against and dismissthe respondent’s application with costs here and in the Court below.'
Gunasekaba J.—I agree.
Swan J.—I agree.
Order set aside.