Judgement

Appeal (No. 57 of 1943) from a decree of the High Court (May 16, 1941) which affirmed a decree of the Subordinate Judge, First Class, Montgomery (May 20, 1939).

The following facts are taken from the judgment of the Judicial Committee—The appeal arose out of a suit instituted by the plaintiffs—appellants before the Board—for setting aside the sale, and for possession, of the properties mentioned in the plaint which were sold by court in execution of a decree, by reason of a surety bond executed by their father, Uttam Chand, in the circumstances mentioned below. The properties in dispute were ancestral. The main question arising for decision in this appeal was whether the above-mentioned surety bond created or gave rise to a personal liability on Uttam Chand. Uttam Chand and Dogar Chand, shown in the pedigree given below, were two separated Hindu brothers. Kesar Chand and Ram Lai—appellants Nos. 1 and 2—were the sons of Uttam Chand; Chand Kishan—appellant No. 3—was the son of Kesar Chand and grandson of Uttam Chand. Uttam Chand and the three appellants constituted a joint Hindu family. Dogar Chand died leaving a widow, and three minor sons, Hans Rai, Sohan Lal, and Des Rai.

Machhi Ram

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Uttam Chand Dogar Chand

(Def No.1)endant |

Respondent No.1 |

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Kesar Chand Ram Lal Hans Raj Sohan Lal Des Raj

(Plaintiff No.1) (Plaintiff No. 2)

Appellant No.1 Appellant No. 2

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Chand Kishan

(Plaintiff No. 3)

Appellant No. 3

On July 1, 1927, respondent No.2, Nand Lal, obtained a preliminary mortgage decree against the minor sons of Dogar Chand, represented by their guardian Uttam Chand, on the basis of a mortgage executed by their mother, for Rs. 7,743, with interest and costs. That decree was made final on January 21, 1928. Hans Raj and his brothers, through their guardian, appealed to the High Court against the decree, and prayed for a stay of the execution of the proceedings which had been taken by the decree-holder. The stay asked for was granted by Coldstream J., who passed the following order on May 11, 1928— "Mr. Anant Ram [counsel for Nand Lai] asks that his clients may in any case be secured by a charge upon immovable property against loss if the sale is stayed. I think this is a reasonable argument and, having in view all the circumstances, I order that the property be not sold if the petitioners can furnish security in the form of a charge upon immovable property to the satisfaction of the executing court for paying to the decree-holder in the event of the failure of their appeal, the amount by which the price fetched by the mortgaged property when sold under the decree falls short of the amount then found due to the decree-holder under the provisions of the final decree....." Thereupon, Uttam Chand executed a security bond on July 31, 1928, in the following form, after stating that the High Court had called on him to file a security bond to the effect that if the decree money and costs, etc., were not recovered in full from the land he would be liable to make good the deficiency "Hence I hereby stand as surety for Hans Raj and others, minors, judgment-debtors, and agree that in the event of the appellate courts decision being against the judgment-debtors, my movable and immovable properties, detailed hereinafter, shall be liable for making good the deficiency, if the sale-proceeds of the hypothecated property are not sufficient to meet the demand, i.e., the amount which may then be found due from the judgment-debtors according to the decision." The above statement was followed by a list of some items of movable property, though their security was not called for, and three items of immovable property. The appeal before the High Court was compromised, and the court passed a mortgage decree in terms of the compromise, providing that the property should remain under attachment and that "the security furnished by the surety shall also stand.”

As the mortgage debt was not paid in time, the decree-holder took out