Nachiappa Chettiar vs Kandappan Chettiar and Another

Wallace, J.—I can see no ground for disturbing the order of the lower Court. The surety by his bond undertook a liability to produce the

judgment-debtor before the Court of the District Munsiff of Devakottah, until he was finally discharged of his insolvency. Petitioner pleads that this

final discharge"" does not relate to the I.P. in the District Court which is still pending and in which the judgment-debtor has not yet had a final

discharge, but only to another contemplated I.P. at the date of the bond, which was put in later and dismissed on 22-3-22 I am unable to accept

the contention and petitioner''s own conduct itself proves it is wrong. When he was ordered on 20-6-22 to produce the judgment-debtor, he did

not plead that his liability had ceased on 22-3--22 with the dismissal of the second I.P. but accepted the continuance of his liability and requested

and obtained one month''s time to produce the judgment debtor. The date for the production of the judgment-debtor was adjourned to 28-7-22

and on that date neither the surety nor the judgment-debtor appeared. It is pleaded that in the meantime the judgment-debtor had got a protection

order. Even so, that does not absolve the surety of his duty to produce the judgment-debtor on the adjourned date. It is clear therefore that the

surety did not produce the judgment-debtor when called upon to produce him by the District Munsif''s Court at a time when he had not obtained

his final discharge. This is a breach of the terms of the bond and the penalty therefore falls due.

It is further pleaded that the E.P. of respondent was ultra vires, and that the result of the recovery of the whole debt of this creditor from the

surety permits a practice not sanctioned by the insolvency Court. Neither of the points has been taken at all in the lower Court and I am not

prepared to allow them to be raised here. The foundation of fact for them has not bean clearly laid. I dismiss the petition with costs.