1965 (9) TMI 80 - HC - Indian Laws

Summary

Issues:
1. Interpretation of a suretyship bond in an execution proceeding.
2. Liability of a surety under the Kerala Act 91 of 1958.
3. Application of Section 128 of the Indian Contract Act in determining the extent of a surety's liability.
4. Impact of statutory provisions on the liability of a surety in case of debt relief acts.

Analysis:

1. The appeal arose from execution proceedings where the appellant obtained a money decree against the 2nd respondent. The surety executed a bond agreeing to deposit the decree amount if the appeal was decided against the defendant. The Kerala Act 91 of 1958 came into force, and the appellant sought execution against both the judgment debtor and the surety. The lower court held the judgment debtor was entitled to benefits under the Act, but the surety's liability was limited to that of the judgment debtor.

2. The appellant argued that the surety's liability should be as per the terms of the bond and the decrees. The surety contended that their obligation was co-extensive with the judgment debtor's under Section 198 of the Indian Contract Act. The court analyzed the terms of the bond, stating the surety's liability is limited to the decree amount, which can be varied by statutory provisions.

3. Section 128 of the Indian Contract Act states that the surety's liability is co-extensive with the principal debtor unless otherwise provided. The court found no provision in the bond excluding the operation of this section. It held that a statutory reduction of the principal debtor's liability would reduce the surety's liability proportionally.

4. The court referenced a Full Bench decision of the Madras High Court, stating that a reduction in the principal debtor's liability under a debt relief act would also reduce the surety's liability. Denying this would negate the benefits of such legislation to agriculturist debtors. The court dismissed the appeal, upholding the lower court's decision on the surety's liability.