Kulwant Rai vs Nand Lal and Others

Dr. Bharat Bhushan Parsoon, J.—Order dated 22.9.2003 passed by the Executing Court for recovery of Rs. 30,000/- from the petitioner-surety forms the genesis of this revision petition. Eviction order was being enforced against the tenant by way of an execution application filed by the landlord where, inter alia, petitioner-surety was also a party. Vide the impugned order, the petitioner-surety was called upon to pay an amount of Rs. 30,000/- in the Court to the decree-holder.

Claim of the petitioner-surety is that he having given surety during pendency of Civil Revision Petition is not liable to make any payment towards arrears of rent against the tenant because while deciding the revision petition on 20.1.2000, this Court had not made any observation with regard to undertaking of the petitioner/surety to pay back arrears of rent to the extent of Rs. 30,000/-. It is thus claimed that any surety given by the petitioner herein for payment of arrears of rent by the tenant could enure only during pendency of the appeal and not thereafter.

Counsel for the decree-holder on the other hand has urged that undertaking given by the surety qua payment of arrears of rent by the tenant enures till payment of arrears of rent is made. It is claimed that surety does not get discharged merely because the revision petition had been decided.

Hearing has been provided to the counsel for the parties.

Before rival claims of the parties are appreciated and adjudicated it would be appropriate to take stock of the facts about which there is no dispute.

Eviction of the tenants from the demised shop had been sought by the landlord (respondent No. 1 herein) on the grounds of arrears of rent and subletting. The said petition was dismissed by the Rent Controller on 10.6.1980. The landlord i.e. respondent No. 1 herein preferred Appeal before the Appellate Authority at Sirsa. Accepting the appeal on 10.12.1982 reversing the order of Rent Controller, the tenants were called upon to deliver vacant possession in favour of the landlord within two months.

Pending decision of the revision petition against the orders of 10.12.1982 of the Appellate Authority, this Court on 9.3.1983 had interdict called upon the tenant to furnish adequate security for payment of upto date arrears of rent @ Rs. 400/- per month to the satisfaction of the Rent Controller on or before 1.4.1983. Whereas the tenant had furnished an undertaking to clear the arrears of rent, the petitioner-surety had given surety to the extent of Rs. 30,000/-. These were to be accepted by the Rent Controller after notice to the landlords.

In short pursuant to these orders of 9.3.1983 of this Court, the petitioner had furnished surety bond on 31.3.1983 before the Rent Controller, Sirsa promising to pay arrears of rent @ Rs. 400/- per month to the extent of Rs. 30,000/-. Additionally petitioner-surety had also given an affidavit on the same day undertaking that without permission of the Court he will not alienate the property in any manner, details of which property had also been furnished.

Thus concedingly in addition to personally standing surety for re-payment of arrears of rent @ Rs. 400/- per month the petitioner/surety had also furnished collateral surety of his property giving an undertaking that the same would not be sold without permission of the Court. It is also an admitted fact that though premises have been vacated, but the tenant continues to be paying the arrears of rent, recovery for which arrears is being made.

As on 6.11.2000, the tenant was liable to pay arrears of rent @ Rs. 400/- per month amounting to Rs. 1,12,078 with interest amounting to Rs. 1,04,970/- calculated up to 6.11.2000 and the total liability of the tenant had come to Rs. 2,19,647/-.

Liability of surety is co-extensive with the principal. When the tenant continues to be in arrears of rent, liability of the surety is not discharged because there is no vitiating circumstance attributed to the tenant whereby the surety had changed his position to his prejudice. Since surety of petitioner Kulwant Rai is only to the extent of Rs. 30,000/-, the Executing Court rightly came to the conclusion that surety Kulwant Rai was not liable to pay more than Rs. 30,000/- because he had furnished surety only to that extent. Counsel for the petitioner has placed reliance on Pratibha Singh and Another Vs. Shanti Devi Prasad and Another, of the Hon''ble Apex Court which has already been elaborately discussed by the Executing Court. Since facts of the case in hand with due respect to law laid down in the above authority are different, plea of the petitioner/surety that since tenant JD is not liable and thus there is no liability of the petitioner/surety has no merit.

There is neither any factual nor legal error in the impugned order and thus it does not require any interference. The present revision is dismissed.