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1926 Supreme(Cal) 260
CALCUTTA HIGH COURT
Page, J., Cutting, J.
Joyman Bewa - Appellant
Versus
Easin Sarkar - Respondent
Decided On : 02-02-1926
The main legal point established is that a contract of suretyship may be oral or written, need not be in the form of a security bond in favor of the Court, and renders the surety personally liable for the performance of the decree as per the terms of the agreement.
Headnote:
Surety - Execution Proceedings - 145, C. P. C. - The judgment discusses the validity of a contract of suretyship and its admissibility in evidence, the requirements for execution against a surety, and the limitations on the form of a contract of suretyship under Section 145, C. P. C.
Fact of the Case:
The controversy arose from a consent-decree resulting in an execution case, where a tripartite agreement was reached between the surety, decree-holder, and judgment-debtor. The decree was not paid, and an application was made to execute the decree against the surety.
Finding of the Court:
The court found that the contract of suretyship was valid and admissible in evidence, and the surety had rendered himself personally liable for the performance of the decree as per the terms of the agreement.
Issues: The issues revolved around the validity of the contract of suretyship, its admissibility in evidence, and the requirements for execution against a surety under Section 145, C. P. C.
Ratio Decidendi: The court held that failure to duly stamp a document does not affect the validity of the contract contained therein but renders the document inadmissible in evidence. It also emphasized that a contract of suretyship may be oral or written and need not be in the form of a security bond in favor of the Court.
Final Decision: The court set aside the order refusing execution against the surety and permitted the decree-holders to proceed with the application for execution against the surety under Section 145, C. P. C. The document was impounded for stamp duty, and the appellants were awarded costs in all the courts.
JUDGMENT
Page, J. - This is an appeal from an order refusing to permit execution to be levied against a person who is alleged to have stood surety for the judgment-debtor in execution proceedings.
2. The suit out of which the controversy arose resulted in a consent-decree under which the judgment-debtor was ordered to pay Rs. 330 and the costs of the suit. An execution case followed. In the course of that case an agreement was arrived at between the surety, who is the present contending respondent, the decree-holder and the judgment-debtor. The decretal amount was not paid by the judgment-debtor, but after an application had been made to execute the decree against the surety, a petition was filed on behalf of all the parties concerned stating the terms of the tripartite agreement which had been arrived at, and praying that the execution case might be withdrawn. That petition bears a Court-fee stamp appropriate to a petition, but is not stamped either as a contract of suretyship or as a security bond. The Court, having regard to the petition, permitted the execution case to be withdrawn.
3. Subsequently, the judgment-creditor applied for execution of the decree against the surety to the extent to which he had made himself -personally liable for the decretal amount. This application was made u/s 145, C. P, C., which provides that
4. "Where any person has become liable as surety (a) for the performance of any decree or any part thereof, or (b) for the restitution of any properly 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, the decree or order may be executed against him, to the extent to which Le has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of Section 47.
5. The objection of the surety to am order being made u/s 145, C. P. C, was that he had never become a surety within Section 145, C. P. C, or otherwise for the fulfilment of any obligation of the judgment-debtor under the decree. Now the contract of suretyship, upon which it was sought to make the respondent liable in execution of the decree obtained against the judgment-debtor was contained in the petition of compromise, which was in the following form:
6. "Both sides hereby state:---It being inconvenient to pay money at present and the judgment-debtor, petitioner, having approached the decree-holder and Easin Sarkar of Mahajanpur having stood surety for the said money it is arranged that the judgment-debtor will pay the entire amount due after deducting the amount paid and the costs of this execution case to the decree-holder by the month of Kartik 1328 B. S., otherwise I, Easin barkar, stand surety for the entire amount aforesaid. If Easin Sarkar does not pay the money to you the decree-holder, then you the decree-holder, will be able to realise the money from me Easin Sarkar by executing this decree. Let it be known that the entire cattle attached are released from attachment. Let it be known that we, the decree-holders, have got Rs. 100 which was in deposit with Kutub Mandal which will be credited in the decree. The judgment-debtor and the surety remain liable for Rs. 253-13 (two hundred and fifty-three rupees, one anna and three pies only) and costs of this execution case after deducting the aforesaid Rs. 100."
7. The contest of fact at the hearing of this application was whether the respondent had become liable as surety for the performance of the decree or for the Payment of any money within the meaning of Section 145, C. P. O. The respondent asserted that he had not signed and was neither a party nor privy to the contract set out in the petition. The finding of fact by the Trial Court was adverse to this contention
8. It was held by the learned Munsif that the respondent si
