Vairavan Chetty V. Ukku Banda

Present: Jayewardene A.J.

VAIRAVAN CHETTY v. UKKU BANDA.

167-C. R. Kurunegala, 20,324.

    Surety-Security by judgment-debtor for satisfaction, of a debt on arrest- Forfeiture of bond-Notice-Final judgment-Civil Procedure Code, s. 305.

Where a person binds himself as surety for the satisfaction of a decree by a judgment-debtor, who has been arrested on a civil warrant, and the judgment-debtor is in default.

Held, that it is open to the judgment-creditor to proceed in the same action against the surety for the forfeiture of the bond, provided that due notice is given to the surety to show cause why the bond should not be forfeited and the amount recovered from him.

Suppramanium Chetty v. Gabriel Fernando1[1 (1904) 8 N. L. R. 42.] followed.

The question whether a judgment in appeal from the Court of Requests is a final one depends on the circumstances of each case. It is not possible to give a comprehensive definition of the term " final judgment."

A judgment or order which can be considered on appeal at a later stage of the proceeding, that is, when the case is finally decided does not fall within the term " final judgment," but an order which can never be so brought up in appeal is a " final judgment."

APPEAL from an order of the Commissioner of Requests, Kegalla.

In execution of a decree the plaintiff obtained a warrant of arrest, and had the first defendant arrested and produced in Court on March 19, 1923. On the following day the judgment-debtor gave security in Rs. 370, with the present appellant as surety, to pay the amount in two months' time. The plaintiff accepted the security, and the debtor was discharged. The debtor having failed to pay the amount as stipulated in the bond, the plaintiff's proctor, without any notice to the surety, moved for and obtained a writ of execution against the surety. On May 14, 1924, the surety filed affidavit and petition, and moved that the writ be recalled, and that the plaintiff be ordered to take proper steps against the surety by instituting an action on the security bond. The learned Commissioner of Requests held that no separate decree against the surety was necessary.

The surety appealed.

Croos Da Brera, for appellant.

H. V. Perera, for respondent.

September 3, 1924. JAYEWABDENE A.J.-

The Point for decision in appeal arises in this way :-The plaintiff Chetty v. sued two defendants on a mortgage bond and obtained a mortgage Ukku Banda (decree In execution of the decree, after the debtor's property had been sold, the plaintiff obtained a warrant of arrest. On this warrant the first defendant was arrested and produced in Court on March 19, 1923. The execution-debtor moved for and
obtained a day's time to give security. On the following day the debtor gave security in Rs. 370, with a surety-the present appellant-to pay the amount in two months' time. The plaintiff accepted the security, and the debtor was discharged.

The security bond was entered into with the Chief Clerk of the Court, and purported to hypothecate and mortgage certain immovable property in a schedule annexed to the security bond. There is, so far as I can see, no schedule annexed to this bond. The debtor failed to pay the amount due within two months as stipulated in his bond, and the surety also did not pay the amount.

On May 28 the plaintiff's proctor without any notice to the surety moved for and obtained a writ of execution against the surety. A sum of Rs. 230 appears to have been paid to the judgment-creditor.

On February 7, 1924, the plaintiff moved to issue writ against the surety to recover the balance still due.

This was allowed. On May 14, 1924, the surety filed affidavit and petition, and moved that the order to issue writ be recalled and that a sale fixed for a certain date be stayed. He also moved that the plaintiff be ordered to take proper steps against the surety, that is, I suppose, to institute an action on th

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