TMI Blog1922 (10) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhikaji I.L.R., 12 Bom., 71, where it was observed that if an amount recoverable by a plaintiff from a defendant debtor is diminished in appeal, the surety's engagement, being one of indemnity, would diminish in like proportion. So if the sum recoverable became zero owing to the decree being reversed, the surety's liability would also be reduced to nothing. The present is not a case of continuing guarantee or of time being given to the principal debtor, or of the terms of any contract between the creditor and the debtor being varied. Therefore the references by the respondents' vakil to Sects. 129, 130, 133 and 135 of the Contract Act and to Subroya Chetty v. Ragammall I.L.R., 28 Mad., 161 are not to the point. Nor is there any question of the remedy against the principal debtor becoming barred by limitation or being kept alive by payment, as to which it was held in Brajendra Kishore Roy Chowdhury v. Hindustan Co-operative Insurance Society Ltd. I.L.R., 44 Cal., 978, that Sect. 128, Contract Act, would not prevent the liabilities of the principal and the debtor being distinct in matters of limitation, and in Jambu Ramaswamy Bhagavathar v. Sundararaja Chetti I.L.R., 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the result of such devolution or acquisition is that the estates of the judgment-creditor and the judgment-debtor or of the mortgagee and the mortgagor become united in whole or in part in the person of a single individual. From the intention of the parties in the present case it might be held that there was no merger when the 2nd defendant Nagammal succeeded to the estate of her deceased son 1st defendant, as the former was a limited owner and the decree remained executable against the 1st defendant's estate under Sect. 50, Civil Procedure Code. But when she surrendered the whole estate to the plaintiffs as being the nearest reversioner reserving for herself nothing but a right of maintenance under Ex. II, it cannot be supposed that these reversioners intended to keep alive a debt owed by that estate to themselves, a debt of which no mention is made in Ex. II. They took over among others the properties which were pledged by the 1st defendant's guardian as security for reimbursement of the sureties in the event of their having to pay the 1st defendant's decree debt for mesne profits. What they must be deemed to have got in succession by 1st defendant's untimely de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial when the surrender took place. Lastly, stress was laid on the fact that the arrears accrued during the life time of 1st defendant and gave rise to a personal liability against him which had not been extinguished. On the death of a judgment-debtor, however, execution can only, under Sect. 50, Civil Procedure Code, be taken out against his property in the hands of his legal representative. This judgment-debtor's property is now in the hands of the decree-holders. When it is apparent that they can now do nothing but take out execution against themselves, the argument ends in a reductio ad absurdum. 5. The appeal is allowed with costs here and in the lower appellate Court, and the District Munsifs order dismissing 1st and 2nd respondent's petition is restored. Mutha Venkatasubba Rao, J. 6. This appeal raises the question whether the plaintiffs are entitled to execute the decree under Sect. 145, Civil Procedure Code, against the surety, who is the appellant before us. The District Munsif held that the plaintiffs were not entitled but the Subordinate Judge reversed the decision of the District Munsif. 7. The facts may be briefly stated. The plaintiffs brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties far exceeded in value the sum now claimed in the execution petition. The District Munsif as well as the Subordinate Judge assumes that the plaintiffs succeeded to the properties of the 1st defendant as his heir, but the correct view would seem to be that the plaintiffs acquired the said properties by transfer from the 2nd defendant who is the heir of the 1st defendant. The plaintiffs seek to recover the amount from the surety and the District Munsif dismissed the application on the ground that the debt was extinguished by reason of the fact that the qualities of debtor and creditor became united in the same person viz., the plaintiffs and that the extinction of the principal obligation put an end to that of the surety. The Subordinate Judge disagreeing with the District Munsif held that the plaintiffs were entitled to recover the amount. 8. It seems to me that the Subordinate Judge was clearly wrong. It is not denied that the plaintiffs became the legal representatives of the 1st defendant. Nor is it denied that the properties taken possession of by the plaintiffs were worth considerably more than the amount claimed by the plaintiffs in execution. Under Sect. 50, Civil Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it as utterly untenable. 11. It may be remarked that there is an additional circumstance which renders this argument palpably unsound. In consideration of his having executed the bond in question, the surety obtained from the 1st defendant a mortgage in respect of a property belonging to the latter, with a view to recoup himself out of that property in the event of his being compelled to pay the decree amount on the judgment-debtor making the default. That property has passed to the plaintiffs and is in their possession along with the other properties of the judgment-debtor. If the surety is compelled to pay the amount he can immediately claim it from the principal debtor. In this instance the surety's position is even stronger. He can, on paying the amount, proceed against the property in the hands of the plaintiffs themselves and get a refund of the sum in virtue of the express contract between him and the judgment-debtor. 12. Another argument which has been advanced on behalf of the plaintiffs is this: That when an application is made against a surety under Sect. 145, he is precluded from raising a defence on the score of the decree having become satisfied and that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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