ORDER
1. The present petitioner was the defendant in S. C. Civil Suit No. 162 of 1955 on the file of the Civil Judge, Senior Division at Kar-war. The respondents to this revision petition were the plaintiffs in that suit. The plaintiffs sought for the enforcement of two surety bonds which had been executed hy the present petitioner, when he stood surety for the defendants in another suit namely Original Suit No. 147/1952 on the file of the Civil Judge, Senior Division at Karwar.
Those two surety bonds were Exts. 18 and 25 in the suit before the trial Court. The teamed Civil Judge has given judgment in favour of the plaintiffs and has ordered the defendant to pay the plaintiffs a sum of Rs. 500/- together with the costs of the suit mid future interest at 3 per cent per annum thereon. Aggrieved by this decision of the learned Civil Judge, the defendant has preferred the present revision petition.
2. The learned counsel for the petitioner has urged two main contentions. His first contention is. that the terms of the surety bonds had to be strictly construed and that the lower Court has erred in taking into consideration the order which had been passed by the Court in O. S. No. 147 of 1952 in consequence of which the surely bonds were executed
The contention of the learned counsel is that the terms of both the surety bonds are quite clear in themselves and that under the terms in these two bonds, the defendant was not under any liability to pay Rs. 500/- towards the mesne profits for the percale during which the defendants in O. S. No. 147/52 were in possession of the properties described in the schedule to that suit.
The second contention which has been urged by the learned counsel for the petitioner is that a suit for the enforcement of the liability under the surety bonds was not maintainable. Similar contentions had been raised before the lower Court and they have been overruled. For reasons which will be mentioned hereinafter, I am satisfied atter hearing the learned counsel on both the sides, that there is no force in either of these contentions which have been urged on behalf of the petitioner.
3. As has been pointed out in the judgment of, the lower Court, it was necessary for the lower court to look into the surrounding circumstances and the order which had been passed in the Original Suit No. 147/1952 in pursuance of which the surety bond Ext. 18 was executed. Ext. 25 is the subsequent surety bond which has been executed at the stage when the original suit was in appeal before the District Court.
That suit appears to have been one for a permanent injunction against the defendants. An application appears to have been made by the plaintiffs in O. S. No. 147/52 for an order of temporary injunction during the pendency of that suit. An order of temporary injunction appears to have been passed. Subsequently the defendants appeared and objected. Thereupon the Court ordered that the defendants might continue in possession of the property described in the schedule to that suit, subject to the condition that they should furnish satisfactory security in regard to the income from the properties,
It was under those circumstances that the defendants in O. S. No. 147/1952 offered the security of the present petitioner. According to the order passed by the court in O. S. No. 147/52, it was on account of the income from the properties mentioned in the schedule to that suit and which the defendants of that suit were to be in enjoyment during the pendency of that suit, that security had to be furnished by the defendants. But the terms on which the security of the defendant was furnished under Ext. 18, do not appear to have been in accord with the order which had been passed by the court in O. S. No. 147 of 1952.
According to the terms of the surety bond Ext. 18, the surety appears to have undertaken to see that possession of the property was given or delivered in accordance with the terms of any decree that may be passed. There was really no question of the delivery of any property, because, the suit itself was one for a permanent injunction. The subsequent bond, Ext. 25, which has been executed in pursuance of the order passed by the appellate court also does not appear to have been in accordance with the order passed by that Court.
Under these circumstances, the terms of the surety bonds were really unmeaning with reference to the orders, in pursuance of which they had been executed. It is under these circumstances that the learned Judge of the trial Court thought it fit and proper to construe the terms of these two surety bonds in the light of the orders pursuant to which these two bonds have been executed.
The learned counsel for the petitioner has cited a decision reported in Pannaji Devchand v. Basappa Virappa. 45 Bom L R 510: AIR 1943 Bom 243 in support of the argument that the terms of a surety bond should be strictly construed and that any ambiguity therein should go to the benefit of the surety. This position has been recognised by the lower Court also and the learned counsel for the respondent has not seriously contested the correctness of this proposition. But, the contention of the learned counsel for the respondent is, that having regard to the nature of the suit in O. S. No. 147/52 and the circumstances in which the Court called upon the ''defendants therein to furnish security, the terms of these two surety bonds viz., Exts. 18 and 25 do' not have any meaning.
It is contended by the learned counsel that under such circumstances it is permissible for the court under Section 95 of the Indian Evidence Act to look into the surrounding circumstances and the order of the court pursuant to which the bonds were executed, for properly construing the terms of the two surety bonds. This contention of the learned counsel finds support in a number of decisions amongst which may be cited the Privy Council decision in Raghunandan Prasad Singh v. Kirtyanand Singh , (wherein at p. 132 their Lordships of the Privy Council have staled that the bond must be construed in the light of the order directing the security to be given) Mohendra Nath v. Satish Chandra : AIR1934Cal569 , Elava Pillai v. Muhammad Ibrahim Sahib AIR 1948 Mad 302 and a later decision of the Privy Council reported in Kesar Chand v. Uttam Chand .
In a decision reported in Abdul Majid v. Abdul Majeed, 7 Mys LJ 159 also, the view has been taken that the terms of the surety bond, whenever there is any doubt, should he construed reasonably with reference to the surrounding circumstances and with reference to the Judges notes. On a consideration of these authorities, I am satisfied that the learned Judge of the trial Court was correct in the circumstances of the present case, in having taken into consideration the orders of the court in consequence of which the surety bonds Exts. 18 and 25 were executed. When the terms of these two bonds are construed with reference to the said orders, it becomes clear that the defendant is liable to make good a sum of Rs. 250/- under each of these two bonds, in spite of the somewhat defective language that has been used in these two bonds.
4. The next contention which has been urged by the learned counsel is in regard to the maintainability of the suit. It is seen from the decisions reported in Bhagat Ram v. Mohamad Bakhsh, AIR 1939 Lah 175 and Narayanaswami Ayyar v. Narayana Iyengar, AIR 1943 Mad 283 (at pp. 290 and 291) that the fact that the remedy by way of an application under Section 145 of the C. P. C. is available, does not take away the ordinary remedy by way of suit for the purpose of enforcing the liability of a surely.
The learned author Sir Mulla, in his commentaries on the Code of Civil Procedure, is of the view with reference to Section 145 of the C. P. C. that the section does not bar a regular suit. Under these circumstances, I am satisfied that the view taken by the lower Court as regards the maintain-ability of this suit, is correct. The learned counsel for the petitioner placing reliance on the decision of Prahlad Tika Reddy reported in Prahlad Tirkaraddi v. Laxmana, 49 Bom LR 542: (AIR 1947 Bom 484) attempted to advance an argument to the effect that the remedy for the enforcement of the liability under the surety bond lay only Tinder Section 151 of the C. P. C. and not by way of a separate suit as in the present case.
The learned counsel for the respondent stated that there are authorities in support of the view that a suit would be maintainable to enforce the liability of a surety under the bond and he argued that no objection having been taken before the trial Court to the effect that the liability of the surety could be enforced only by means of an application under Section 151 of the C. P. C. the petitioner should not now be allowed to take up such a ground for the first time in the Court of Revision. I find much force in this contention of the learned counsel for the respondent; the petitioner cannot be allowed to take up such a ground for the first time in revision.
5. For all the reasons above mentioned I am satisfied with the correctness of the judgment and decree made by the lower Court. However it appears to me that some time should have been given by the lower Court to the defendant for the payment of the money that would be duo from him under the two surety bonds which he has executed. The petitioner is allowed four months' time from this date to deposit the sum of Rs. 500/- into the trial Court. Subject to this modification, the judgment of the trial Court stands confirmed and this revision petition is dismissed with costs.
6. Petition dismissed.