1983 Supreme(MP) 689

IN THE HIGH COURT OF MADHYA PRADESH
K.N. SHUKLA, J.
Bhikha Bhai - Appellant
Vs.
Daulatram - Respondents
M.A. No. 175 of 1982 (I)
Decided On : 24-02-1983

Headnote:Civil Procedure Code, 1908 – S. 94 and O. 38, R. 5 – security given to bailiff – when binds surety – security furnished in response to show cause notice of attachment – surety is bound by the bond – irregularity not affecting or causing prejudice – of no avail.

        Short Note

       1. Respondent No. 1 (decree holder) had filed suit against respondents 2 and 3 for recovery of Rs. 3,053.26 P. towards price of goods. During the pendency of the suit on 22 – 9 – 1971 an application under Order 38, rule 5 of the Civil Procedure Code was filed for attachment before judgment. On this application the Court directed the defendants to furnish security in accordance with the provisions of the rule. When the bailiff served the order on the defendants, the present appellant stood surety and executed a surety bond. In response to the notice, defendants appeared before the Court and prayed for time to show cause against the application under Order 38 rule 5 CPC. The case was adjourned from time to time and finally an exparte decree was passed against the defendants. Plaintiff decree holder respondent No. 1 in this appeal sought to execute the decree for recovery of the amount against the defendant Judgment debtor first and then against the surety. The surety resisted the execution and pleaded that he was not bound by the decree and the same was not executable against him. This objection weighed with the executing Court and execution proceedings against him were dismissed. In appeal against the said order the learned Additional District Judge took a contrary view and held that the surety was bound by the terms of the surety bond. Against this order the present appeal has been filed by the surety.

       Held : In the instants case a command had been issued to the bailiff for directing the defendants either to furnish security or to show cause why they should not furnish security. It was also directed that if the defendants did not furnish security then their movable property be attached.

       2. When the bailiff went to execute this order, the present appellant furnished security for payment of the decretal sum. The attachment, therefore, was not effected on account of the security furnished by the appellant. Neither any objection against the order was filed by the defendant. It was not a matter of jurisdiction because the Court had jurisdiction to ask the defendant to furnish security for production of property. There was a miner irregularity in the sense that the surety did not bind himself to produce any property but he furnished security for payment of the decretal sum. In effect the security furnished under Order 38 rule 5 is the security in respect of the decree which may ultimately be passed though in form it relates to production of property. Thus the security furnished by the appellant though not strictly within the ambit of section 94 read with Order 38 rule 5 in effect it was a security for payment of the decretal amount.

       3. There is another aspect also to this question. As already observed the bailiff was directed to obtain security and on failure of the defendant to obtain security and on failure of the defendant to do so to attach movable property. The attachment was not effected because of the security furnished by the appellant. If the defendant on the basis of the surety bond got an advantage inasmuch as his property was not attached, the surety is estopped from turning round and saying that the bond furnished was either irregular or invalid. When once he made the Court to act upon the bond he cannot be allowed now to resile from the conditions laid therein to the detriment of the decree holder. Had he not furnished security, the plaintiff/decree holder would have attached the property of the judgment – debtor before the judgment and secured payment of the decretal amount.

       4. The surety bond delivered to the bailiff for being transmitted to the Court resulted in non – execution of the attachment warrant. There was no objection either by the defendant or by the surety. The surety will be deemed to have acquiesced to the procedure adopted in obtaining the bond for relieving the defendant from the imminent danger of attachment before judgment. See: Dhian Singh v. Secretary of State (AIR 1945 Nagpur 97). Thus I am clearly of the view that it was not a case of absence of jurisdiction and if there was any irregularity, no prejudice was shown by the appellant surety. In any case he was estopped from challenging the enforceability of the bond in the circumstances mentioned above. 1958 MPLJ SN 156 and 1967 JLJ 1020 (SC) distinguished. 1972 Guj. Law Reporter 485, AIR 1966 Ker. 212 (FB) and AIR 1945 Nag. 97 relied on. Appeal dismissed.