SOERTSZ A.J.—Pandithan Chettiar t;. Singhappuhamy.
1935Present: Soertsz A.J.
PANDITHAN CHETTIAR v. SINGHAPPUHAMY.
129—C. R. Kurunegala, 8,802.
Surety—Party to mortgage bond—Renunciation of benefits—Action on bond—Subsequent claim against surety—Civil Procedure Code, s. 34.
Where a person bound himself as surety to a mortgage bond “renouncingall benefits to which a surety is legally entitled in respect of becoming asurety ”,—
Held, it was open to the mortgagee to sue the surety after the mortgageproperty had been excussed, and that section 34 of the Civil ProcedureCode was no bar to the action.
PPEAL from a judgment of the Commissioner of Requests,Kurunegala.
Navaratnam, for defendant, appellant.
Rajapakse, for plaintiff, respondent.
October 24, 1935. Soertsz A.J.—
In this case the plaintiff sued the defendant to recover a sum ofRs. 231.57, in the following circumstances. Odiris Appuhamy and hiswife Jino Nona borrowed from the plaintiff a sum of Rs. 200, and tosecure the repayment of this amount and interest gave him a mortgage
SOERTSZ A.J.—Pandithan Chettiar v. Singhappunamy.
over a certain land belonging to them. The defendant became a partyto that bond in these terms " And I, S. Singhappuhamy of Nakkawattaaforesaid, without regard to the difference between a debtor and a suretyhereby renouncing all benefits to which a surety is legally entitled inrespect of becoming a surety, do hereby for myself and my heirs, executors,administrators, and assigns further bind myself to pay the said principaland interest on demand as a surety for the said debtors
Odiris and his wife failed to pay the amount due and the plaintiff suedthem in C. R. Kurunegala, case No. 7,829, and having obtained judgment,realized a sum of Rs. 22.50 by the sale of the property mortgaged. Henow sues the defendant to recover the balance.
The contention put forward for the defendant is that the plaintiffcannot maintain this action as he failed to make the defendant a party tothe earlier case. As a matter of fact, after obtaining judgment againstthe mortgagors in the earlier case the plaintiff moved that the presentdefendant be made a party defendant. But on the day fixed for inquiryinto this motion, the Commissioner made order “ Application is dis-allowed without prejudice to the rights of the plaintiff and the partynoticed
In my opinion, the defendant was not liable to be sued till the plaintiffhad sued the mortgagors and levied on the mortgaged property. WalterPereira’s " Laws of Ceylon ” citing Grotius (bk. III., tit. 3, p. 32) and VanderKeessel, p. 507 as authorities, says on page 701 “ Persons who have become' security ’ for a debt for which a pledge or mortgage has been given maynot be sued before the mortgaged property has been excussed, but onlyafter such excussion for any balance that may remain due to the creditor…. unless it were expressly otherwise agreed upon It is
contended that in this case there was such an express agreement to thecontrary as the defendant had declared that he would pay the amount“ without regard to the difference between a debtor and a surety herebyrenouncing all benefits to which a surety is legally entitled ”. But itmust not be overlooked that the defendant- goes on to say “ bind myselfto pay the said principal and interest on demand as a surety for the saiddebtors ”. Quite apart from that, it would have been open to thedefendant, even if he had undertaken to pay the amount “ without regardto the difference between a debtor and a surety and renouncing all benefitsto which a surety is legally entitled ”, to say that such a general declara-tion did not debar him from pleading that the principal debtors should beexcussed before he could be made liable. In the case of Amerasinghe v.PereraGarvin and Poyser JJ. held with regard to a similar declarationin a bond that “ although the interpretation of the language employeddiscloses an intention on the part of the sureties to renounce all thebenefits to which the sureties are entitled, it is well settled that such ageneral renunciation is insufficient in law unless the surety who makesit is himself a lawyer or declares in the writing that he has full knowledgeof the rights he is so renouncing—vide Wijewardene v. Jayewardene’.
There is in this case another view of the matter too. For, it seems to methat even in a case where a surety has succeeded in divesting himself of* 35 N. L. R. 306.2 19 N. L. It. 449.
312SOERTSZ A.J.—Pandithan Chettiar v. Singhappuhamy.
the benefits to which a surety is entitled, it is open to the creditor nonethe less to sue him after he has excussed the principal debtor, for thesurety although he has deprived himself of the rights of a surety is still asurety. In this case, at any rate, clearly so, for even while attemptingto renounce the benefits of a surety he binds himself “ to pay the saidprincipal and interest on demand as a surety for the said debtors ”. It is,however, contended that section 34 of the Civil Procedure Code debars acreditor in Ceylon from maintaining two actions, one against the principaldebtor and the other against the surety. The words relied on are theconcluding words in section 34 “ an obligation and a collateral security forits performance shall be deemed to constitute but one cause of actionBut clearly that provision refers to cases where an obligation is incurredand the collateral security is given by the same person or persons, as washeld in the cases of Moraes v. Nallan Chetty' and Palaniappa Chetty x>.Mortimer*.
therefore, think that the appeal must be dismissed with costs.
> 24 N. L. R. 297.
* 25 N. L. R. 209.
PANDITHAN CHETTIAR v. SINGHAPPUHAMY