030-NLR-NLR-V-51-WANIGASURIYA-Appellant-and-HINIDUMA-CO-OPERATIVE-SOCIEITY-et-al-Respondents.pdf
Wanigasuriya v. Hiniduma Co-operative Society
13S
1949Present: Jayetileke S.P.J. and Canekeratne J.
WANIG ASUKIYA, Appellant, and HINIDUMACO-OPERATIVE SOCIETY et al, Respondents
S. C. 4—D. C. Galle X m
Civil Procedure Code—Execution of mortgage bond by surety as security formanager of Co-operative store—Dispute—Arbitration—Award—Seizureof property hypothecated—Section 348—Not appli cable.
Tho appellant executed a mortgago bond security fur the duo perfor-mance by tho 2nd rospondont of his duties as manager of aCo-operative store. A dispute between the 1st and 2nd respondentswas referred to arbitration under tho Co-operative Societies Ordinanceand an award was made against the 2nd respondent. Writ issued butwas returned to Court. Thereafter the 1st respondent moved for a noticeon tho 2nd rospondont in terms of section 348 of the Civil ProcedureCode to show cause why the property hypothecated should not be sold.
Held, that section 348 of tho Civil Procedure Code did not- apply.That section applied only whore a liability was incurred as surety forthe performance of the decree after the institution of the action andbofore tho entering of tho decreo.
1 (1910) 2 Matam Cuics 113.
* (7925) 6 Bttlnsinaham's .Vote# o] Cases 46.
JAYETILEK.E S.P.J.—Wanigaiuriya v. Hiniduma Co-operative Society 139-
.APPEAL from a judgment of the District Judge, Galle.
H. W. Jayetcardene, for the appellant.
Cyril E. S. Perera, with E. A. G. de Silva, for the respondents.
Cur. adv. vuli.
June 3,1949. Jayetilkkk S.P.J.—
The 1st respondent engaged the 2nd respondent to manage its businessand the appellant executed a mortgage bond in favour of the 1st respond-ent for Rs. 1,000 by which be made himself liable as surety for the dueperformance by the 2nd respondent of his duties as manager. A disputearose between the 1st respondent and the 2nd respondent in regardto a sum of Rs. 764*49 and the said dispute was referred to arbitrationunder rule 29 of the rules framed under the Co-operative Societies Ordi-nance, No. 34 of 1921. On January 23, 1945, the arbitrator made hisaward by which he awarded to the 1st respondent the amount claimed,to wit Rs. 764*49. The 2nd respondent failed to pay the said sum tothe 1st respondent whereupon the latter filed the award in the DistrictCourt- of Colombo on January 4, 1946, and applied for a writ againstthe 1st respondent in this action. The application was allowed and theFiscal seized certain property belonging to the 1st respondent. OnAugust 24,1940, the Fiscal returned the writ to Court on the ground thatthe 1st respondent failed to pay the charges necessary for advertisingthe sale in the Gazette. On May 19, 1947, the 1st respondent moved fora notice on the appellant to show cause why the property hypothecatedby him should not be sold. The appellant opposed the application onthe ground that section 348 of the Civil Procedure Code on which the 1strespondent relied did not apply to a case like the present. That sectionreads—
“ Whenever a person has, before the passing of a decree in anoriginal suit, become liable as surety for the performance of the sameor of any part thereof, the decree may be executed against him to theextent to which he has rendered himself liable in the same manneras a decree may be executed against a dofendant:
Provided that such notice in writing as the court in each case thinkssufficient has been given to the surety ”.
The language of the section is very clear. It refers to a liabilityincurred by a person as surety for the performance of the decree afterthe institution of the action and before the entering of the decree. Inthe old Code of Civil Procedure of India1 there is a section whichcorresponds with section 348 of our Code. It reads—
“ Whenever a person bias, before the passing of a decree in an origins Isuit, become liable as surety for the performance of the same or of anypart thereof, the decree may be executed against him to the extent towhich he has rendered himself liable in the same manner as a decreemay be executed against a defendant:
* Code oj Civil Procedure of India, Act XIY of 1882 $■ 283.
140
The, King v. Marshall Appuhamy
Provided that such notice in writing as the court in each case thinkssufficient has been given to the suroty
In Ram Coomar Coondoo v. Chunder Canto Mookerjte1 it was heldthat this section applies to arrest and attachment before judgment andto cases whore a plaintiff may be called upon to give security for costs.In the present case no action was pending between the 1st and 2nd res-pondents at the time the bond was oxecutod by the appellant and section348 is therefore clearly inapplicable.
I would accordingly allow the appeal. The appellant will bo entitledto the costs of appeal and of the inquiry in the Court below.
Canekeratne J.—I agree.
Appeal allowed.