WIJEYEWAJUDENE AJ.—Charles v. Jayasekere.
1938Present: Heame J. and Wijeyewardene A.J.
CHARLES v. JAYASEKERE.
32—D. C. (Inty) Colombo, 1,274.
Surety—Application for execution against surety—Default by defendant—
Liability of surety—Civil Procedure Code, s. 348.
An action for the recovery of money due upon a promissory note wassettled by a joint-motion agreeing to the decree being entered uponstated terms. The motion contained an endorsement to the followingeffect: —
“We, the undersigned ….. jointly and severally promise to paythe plaintiff the amount of the decree or any sum that is due to theplaintiff if the defendant fails to satisfy the decree, as stipulated in thedecree. ”
The decree did not incorporate the undertaking contained in theendorsement. On default made by the defendant, the plaintiff appliedfor writ of execution against the sureties.
Held, that he was entitled to do so under section 348 of the CivilProcedure Code and that he was not bound to proceed by way of regularaction.
Held, further, that it was not necessary that there should be a bond infavour of the Court before the section could be applied.
^^PPEAL from an order of the District Judge of Colombo.
L. A. Rajapakse (with him A. C. Z. Wijeratne and O. L. de Kretser, Jnr.),for petitioner, appellant.
N.E. Weerasooria, K.C. (with him H. A. Wijemanne), for plaintiff,respondent.
Cur. adv. vult.
September 30, 1938. Wijeyewardens A.J.—
'The plaintiff instituted this action against the defendant for therecovery of a sum due on-a promissory note. When the defendant wasserved with summons the Proctors for the plaintiff prepared the followingconsent motion to be filed in Court:—~
“ We move that judgment be entered for plaintiff as prayed for withcosts payable as follows: a sum of Rs. 100 (one hundred) to be paidthis day and the balance to be paid by monthly instalments of Rs. 30commencing from November 10, 1936.
“ If the defendant make default in any payment of instalments or ifwrit issues in any case against the defendant—writ to issue in this casewithout any notice to the defendant'for the balance then due ”■
This motion bore the following endorsement: —
“We, the undersigned K. D. Kamalawathie, K. Piyadasa, and D, C.
Jayasekera of Second Division, Maradana, Colombo, jointly andseverally promise to pay the plaintiff the amount of the decree or anysum that is due to plaintiff, if the defendant fails to satisfy the decreeas stipulated in the decree.”
D. C. E. Jayasekera mentioned in the endorsement is the presentappellant.
WIJEYEWARDENE A.J.—Charles v. Jayasekere.
The motion was filed in Court and decree was entered in terms of themotion. The decree however did not incorporate the undertakingcontained in the endorsement."
The defendant made some payments as set out in the decree and there-after made default.
The plaintiff thereupon applied for writ against the defendant and onFebruary 17, 1937, the Court ordered writ to issue returnable on February17, 1938.
On November 4, 1937, the plaintiff applied under section 348 of theCivil Procedure Code, 1889, for execution against K. D. Kamalawathie,
K.A. Piyadasa and the appellant, who he alleged were “sureties asaforesaid for the recovery of the balance claim and costs The appellantfiled an affidavit opposing this application. He pleaded that executionshould not issue against him “ as the decree entered in the case did notbind him ”• and he stated further that the plaintiff induced him to makethe endorsement on the motion as a “ guarantor ” and gave him anassurance that the “ signatures were obtained merely to ensure thedefendant paying the instalments regularly ”.
The learned District Judge made an order allowing plaintiff’s appli-cation and the present appeal is against that order. The order of theDistrict Judge shows that the position taken by the appellant before himwas that there was no decree entered against him and that his promisewas merely a guarantee on which the plaintiff should bring a separateaction.
The Counsel for the appellant has argued that section 348 did not per-mit the plaintiff to proceed in this action against the appellant and that theplaintiff should seek relief by way of a regular action. I am unable -touphold this contention. The provisions of the section indicate clearly thata judgment-creditor could proceed in the same action against a surety. Thesection states that the decree may be executed against the surety “ afterapplication made by the judgment-creditor.to the Court for that purposeby a petition to which the person sought to be made liable as surety shallbe named respondent ”. This section corresponds to section 253 of feeIndian Code of 1889 and to section 145 of the Indian Code of 1908.Section 253 of the old Indian Code did not contain the provisions whichI have cited from our section and even then there was a diversity ofjudicial opinion in India on the question whether a surety could not beproceeded against summarily under that section. The question washowever set at rest when the Indian Code of 1908 was passed containingsection 145 which like section 348 of our Code expressly provides for theadoption of summary procedure against a surety (vide Sarkar’s CivilProcedure Code (7th ed.), vol. 1. p. 197.
The appellant’s Counsel urged for the first time at the hearing of thisappeal the following further arguments against the order of the DistrictCourt:—
that the provisions of section 348 do not apply where the suretyhas not entered into a bond,
– (ii) that in the absence of a bond in favour of the Court no proceedingscould be taken under this section,
(iii) that the appellant was not a surety.
ABRAHAMS CJ.—Dole v. Romanis Appu.
In my opinion the first two propositions • cannot be sustained withoutreading into section 348 certain words of limitation which are not there.Moreover, under our law, all that is required for a contract of suretyshipin a writing signed by the party making' the same (vide section 21 ofOrdinance No. 7 of 1840). The decision of the Calcutta High Court inJoy man Bewa v. Easin Surkar1 is a direct authority against the contentionof fhe appellant’s Counsel. It was held in that case that there was nowarrant for the proposition that only a security bond in favour of theCourt could be executed under section 145 of the Indian Code, 1908, andthat there was no need for any bond provided there was an expresscontract guaranteeing the performance of any of the obligations set outin the section.
With regard to the objection that the appellant is not a surety I needonly state that this objection appears to ignore the plain meaning of theendorsement on the motion and is directly in conflict with the positiontaken by the appellant in the District Court.
I dismiss the appeal with costs.
Hearne J.—I agree.
CHARLES v. JAYASEKERE