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Present: Jayewardene A.J.VAIRAVAN CHETTY v. UKKU BANDA.
167—0. B. Kurunegala, 20,524.
Surety—Security by judgment-debtor for satisfaction of a debt on arrest—
Forfeiture of bond—Notice—Final judgment—Civil ProcedureCode, s. 306.
Where a person binds himself as surety for the satisfaction ofa decree by a judgment-debtor, who has been^ arrested on a civilwarrant, and the judgment-debtor is in default.
Held, that it is open to the judgment-creditor to proceed in thesame action against the surety for the forfeiture of the bond,provided that due notice is given to the surety to show causewhy the bond should not be forfeited and the amount recoveredfrom him.
Suppramanium Chetty v. Gabriel Fernando 1 followed.
The question whether a judgment in appeal from the Courtof Requests is a final one depends on the circumstances of eachcase. It is not possible to give a comprehensive definition of theterm ** final judgment.”
A judgment or order which can be considered on appeal at alater stage of the proceeding, that is, when the case is finallydecided does not fall within the term “ final judgment,” but anorder which can never be so brought up in appeal is a “ finaljudgment.”
A PPEAL 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 onMarch 19, 1923. On the following day the judgment-debtor gavesecurity in Rs. 370, with the present appellant as surety, to paythe amount in two months’ time. The plaintiff accepted thesecurity, and the debtor was discharged. The debtor having failedto pay the amount as stipulated in the bond, the plaintiff’s proctor,without any notice to the surety, moved for and obtained a writof execution against the surety. On May 14, 1924, the surety filedaffidavit and petition, and moved that the writ be recalled, andthat the plaintiff be ordered to take proper steps against the suretyby instituting an action on the security bond. The learnedCommissioner of Requests held that no separate decree against thesurety was necessary.
The surety appealed.
Croos Da Brera, for appellant.
H. V. Perera, for respondent.
1 (1904) 8 N. L. B. 42.
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1924. September 3, 1924. Jayewardene A.J.—
Vairavan ' The point for decision in appeal arises in this way :—The plaintiffChetty r. sued two defendants on a mortgage bond and obtained a mortgageI'kkn Banda decree. jn execution of the decree, after the debtor’s propertyhad been sold, the plaintiff obtained a warrant of arrest. Onthis warrant the first defendant was arrested and produced inCourt on March 19, 1923. The execution-debtor moved for andobtained a day’s time to give security. On the following daythe debtor gave security in Rs. 370, with a surety—the presentappellant—to pay the amount in two months’ time. The plaintiffaccepted the security, and the debtor was discharged.
The security bond was entered into with the Chief Clerk of theCourt, and purported to hypothecate and mortgage certainimmovable 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 asstipulated in his bond, and the surety also did not pay the amount.
On May 28 the plaintiff’s proctor without any notice to thesurety moved for and obtained a writ of execution against thesurety. A sum of Rs. 230 appears to have been paid to thejudgment-creditor.
On February 7, 1924, the plaintiff moved to issue writ againstthe surety to recover the balance still due.
This was allowed. On May 14, 1924, the surety filed affidavitand petition, and moved that the order to issue writ be recalledand that a sale fixed for a certain date be stayed. He also movedthat the plaintiff be ordered to take proper steps against the surety,that is, I suppose, to institute an action on the security bond.This application was discussed on June 16 and refused, the Courtholding that no separate decree was necessary against the surety.From this order the surety appeals. A preliminary objection istaken to the hearing of this appeal, on the ground that the orderappealed from is not a final judgment or an order having theeffect of a final judgment, from which alone appeals are permittedin cases before Courts of Requests under sections 39 and 80 of theCourts Ordinance. The contention raised for the surety whichwas overruled by the learned Commissioner was that there shouldbe a judgment and decree against him before writ of executioncould be issued for the seizure of his property.
In my opinion the order of the Judge holding that no separatejudgment or decree is required by law against a surety in theposition of the petitioner—and that, therefore, writ was rightlyissued against him—is an order having the effect of a final judg-ment. It is impossible to give a comprehensive definition of theterm “ final judgment.” Attempts to do so have not beensuccessful. The question whether a judgment is a11 final judgment ”or not must depend on the circumstances of the case. But this
much may be stated, that a judgment or order which can beconsidered by a Court of Appeal at a later stage of the proceedings—that is, when the case is finally decided—does not fall within theterm “ final judgment.** But it is not possible to say that anyorder which can never be so brought up in appeal is not a finaljudgement.
In this case the order under appeal is one made between theplaintiff and a surety who is not a party to the action in the strictsense of the term. The question has been finally decided betweenthe parties to it, and the order is made in execution proceedings.If an appeal is not taken now, will the surety get any other oppor-tunity of challenging the correctness of the order ? I think not.If so, the order has the effect of a (< final judgment/* and is appeal-able under sections 39 and 80.' The object of this section is toprevent interlocutory appeals in Court of Bequests cases whichare to be speedily disposed of, but it was, in my opinion, neverintended to prevent appeals against orders of this kind. For thedecision of this question previous decisions holding that certainother orders are not final within the meaning of sections 39 and80 are not of much assistance. I accordingly overrule thepreliminary objection.
To come to the objections raised in the lower Court. When ajudgment-debtor is arrested and produced before the Court, theCourt can release him from arrest under section 305 of the CivilProcedure Code “ if he gives security for the payment of thesame (that is, the amount of the decree and the costs of the arrest)to the satisfaction of the judgment-creditor.** In this case thejudgment-creditor was satisfied with the security given by theapplicant as surety for the payment of the debt within two months,and the Court released the debtor. The applicant contends thatthe security bond cannot be enforced in the same action, but thatit should be sued on in a separate action, and he also contendsthat if it is enforced in the same action, it should be after noticeto him. In support of his contention Counsel for the appellantrelies on Arumogam Chetty v. Banda/ in which it was held thatwhen a surety had bound himself for the appearance of a judgment-debtor, who had been arrested on a particular date, and on everysubsequent date to which the inquiry regarding the committalof the debtor might be postponed, and had failed to secure theattendance of the debtor on one of the dates, he was not liable tohave his bond forfeited in the action in which it was given, butthat it should be enforced by means of a separate action. This isa single Judge judgment, and is in direct conflict with another judg-ment of this Court (Suppramaniam Chetty v. Gabriel Fernand/*2),which is a judgment of two Judges. In this case the judgment-debtor appealed against the order committing him to jail. Pendiug1 (1912) 6 L. Ir. X. 97.2 (1904) 8 N. L. X. 42.
CheUy v.Vkbu Banda
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appeal he was allowed out on bail, on the appellant in the casebecoming his surety. In appeal the order was affirmed, and thedebtor failed to appear on notice. The bail bond was forfeitedin the action in which it was given without any notice to the suretyto show cause against the forfeiture. The Supreme Court heldthat when a person has bound himself as a surety for the perform-ance by a party to a legal proceeding of a judgment or order insuch proceeding, he may be proceeded against in the same proceedingfor the forfeiture of his bond and the recovery of the amountthereof, but he must, in the first instance, be noticed to show causewhy the bond should not be forfeited and the amount should notbe recovered from him.
The Court followed a decision of Cayley C.J. (then Cayley J.)reported in Greniers Reports, D. C. 1873, p. 79, and said;—
Voet (2, 7, 17) seems to sanction the practice, which was said bySir Richard Cayley when a Puisne Justice of this Court, to prevailin the District Court of Colombo (Grenier’s Repcyrts, D. C. 1873, p. 79)that when security has been given for the performance of ajudgment to allow the liabilities of the sureties to be determinedin the same case in which the judgment has been entered againstthe principal, without requiring the plaintiff to commence a freshaction, unless it is shown in any particular case that such a course
1 would be manifestly inconvenient or prejudicial to the interestof the sureties.” Sir Richard Cayley further says : “ This practiceshould be followed in the other Courts in the Island, as it tendsto prevent unnecessary delay and expense,” but he is careful toenunciate for the protection of sureties that the proper courseis to give full notice to the sureties, and that a rule should issueagainst them to show cause why their bond should not beforfeited.
This judgment is binding on me. The Civil Procedure Codemakes no provision for a case of this kind. Section 348 expresslyprovides for the case of a person who before the passing of a decreein an original action becomes liable as surety for the performanceof the same or of any part thereof, and in such a case the decreemay be executed against the surety in the same maimer as thedecree may be executed against a judgment-debtor, upon applicationmade by the judgment-creditor by a petition to which the personsought to be made liable as surety is named respondent. It maybe argued that in the absence of a similar provision in the caseof a person becoming surety after the passing of the decree, theproper procedure is to enforce the bond by a separate action.But the procedure approved in Suppramaniam Chetty v. GabrielFernando (supra) and by Cayley C.J. was a procedure whichexisted under the law which regulated the practice of our Courtsbefore the Civil Procedure Code came into operation, and isconserved by section 4 of the Civil Procedure Code which directs
VairavanChetty v.Vhku Honda
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that “ in every case in which no provision is made by thisOrdinance, the procedure and practice hitherto in force shall befollowed
The adoption of this procedure since the Civil Procedure Codecame into operation may, therefore, be justified under section 4.All judicial bonds are, so far as I am aware, enforced in this summarymaimer, and bonds given to secure the payment of costs of appealhave always been summarily enforced without the respondent beingdriven to the necessity of bringing an action on it. Our Courts havealso approved the practice which prevailed before the Code cameinto operation of judicial bonds being signed before a Judge or ahigh officer of the Court, without requiring its execution beforea notary and two witnesses or a District Judge or Commissionerof Requests and two witnesses as required by Ordinances No. 7of 1840 and No. 17 of 1852, notwithstanding the fact that thebond hypothecated immovable property (Hohammaddo Tamby v.Pathumma,1 Menikkamy v. Pinhamy,2 and Fernando v. Fernando 3).
I n the present case, too, the security bond has been signed beforethe Judge. The procedure referred to in Suppramaniam Cketty v.Gabriel Fernando (supra) applies in my opinion to all judicial bondswhich the Code authorizes the Courts to accept. This case is notreferred to in the judgment of Lascelles C.J. in Arumogam Chetty v.Banda (supra), and I am sure the decision of the learned Chief Justicewould have been otherwise, if his attention had been drawn to it.In this connection I would point out the necessity of counselreferring the Court to all the decisions relevent to a point underdiscussion. If counsel do so, many conflicting decisions whichare to be found in our law reports and which prove so embarassingto those who have to administer justice in our Courts would largelydisappear, and I desire to emphasize here what a learned EnglishJudge said on the subject: “ Half the bulk and much of theconfusion of English case law springs from the fact that manydecisions are given without adequate reference to the particularauthorities which bear on the point at issue. If these authoritiesare before the Court, then a decision, be it right or wrong, is, at allevents, given with a knowledge of the appropriate cases. If notbefore the Court, then obscurity and inconsistency take a newbirth/’
I may, however, point out that there is nothing to prevent anyobligee from bringing a separate action on the bond if he choosesto do so (Misso v. Kadappa Chetty 4 and Moldrich v. Comelis 5).
would follow Suppramaniam Chetty v. Gabriel Fernando(supra), and hold that the security bond can be enforced in theaction in which it was entered into. But there has been a failure
1 I C. L. Rec. 26.8
8 (1921) 23 N L. R. 189.*
5 (1910) 14 N. L. R. 97
U kk” Panda
(1921) 23 N. L. R. 463.
(1899) 3 A. C. R. 48.
Jayewab*DENE A. J.
Chetfy v.Ukku Bawla
to call upon the surety to show cause against the forfeiture of thebond. This is a necessary preliminary to the enforcement of thebond in the same action, as decided by this Court in that case.
I am therefore compelled to set aside the order under appeal.All the proceedings against the appellant subsequent to May 28,1922,including the order made on that day, are quashed, and the case isremitted to the lower Court to enable the Commissioner to issuea notice on the appellant to show cause why the bond granted byhim should not be declared forfeited.
The judgment-creditor might also consider whether it is notnecessary to obtain an assignment of the bond in his favour(Misso v. Kadappen Chetty (supra) and In the Matter of the Goodsand Chattels of Hippola Dhamma Rakitta Shahithadana MahanayakaUnnanse 1).
The appellant is entitled to the costs of this appeal and to anycosts incurred by him in the lower Court.
VAIRAVAN CHETTY v. UKKU BANDA