Case: Howrah Insurance Co. Ltd Vs. Sochindra Mohan Das Gupta

against the Receiver and the appellant praying that execution do issue, against the appellant as directed by the Court. The appellant filed this objections to that petition but the learned Judge rejected the objections and directed that the damages awarded to the respondent be recovered from the appellant. The appellant filed an appeal against that order but it was dismissed by the learned Judicial Commissioner on June 29. 1970. This appeal by special leave is directed against that judgment.5. Learned counsel appearing on behalf of the appellant has raised two contentions (1) The Subordinate Judge who tried the suit is incompetent to enforce the surety bond executed by the appellant as he is neither the successor nor the successor-in-office nor the assign of the District Judge; and (2) Under the terms of the bond, the appellant is not answerable for the loss caused to the tea garden by fire.6. Both of these contentions turn on the terms of the surety bond and it is therefore necessary to have a look at that bond.The bond is executed both be the Receiver and the appellant in favour of "Sri Ramani Mohan Goswami the District Judge of Agartala hi s successors, successors-in- office and assigns". By the bond, the executants bound themselves jointly and severally in the whole of the amount of Rs. 50, 000 up to the District Judge. Agartala, his successors, successors-in-office and assigns. The bond, though executed on August 26, 1950, relates back to January 22, 1950 being the date when the Receiver took possession of the property.7. It is urged that the bond can be enforced only by or at the instance of the District Judge, Agartala, or his successors, successors-in-office of assigns and the Subordinate Judge, Agartala not being either of these, it is incompetent for him to enforce the bond. We see no substances in this contention. The Subordinate Judge of Agartala may not be the successors-in-office of the District Judge because "successor-in-office" would mean successor of the District Judge in the post or office of the District Judge. But the Subordinate Judge, Agartala is, for the purposes of the present proceedings, a successor of the District Judge who was seized of the suit and who transferred it to the Subordinate Judge under the Tripura (Courts) order of 1950. The surety bond was executed in and for the purposes of the particular proceedings which were pending before the District Judge, in order that the bond should be enforceable at the instance of the presiding officer of the court. "Successor", therefore, must in the context mean the court which for the time being is seized of the proceedings.8. Under section 150 of the Code of Civil Procedure, save as otherwise provided, where the business of any Court is transferred to any other Court, the transferee Court has the same powers and is entitled to perform the same duties as those respectively conferred and imposed by the Code upon the transferor Court. The surety bond was a part of the proceedings pending before the District Judge and on the transfer of the Suit the entire proceedings, including the bond. stood validly transferred to the Court of the Subordinate Judge. Thus, by virtue of section 150, the Subordinate Judge was entitled to exercise the same powers in the matter of the enforcement of the bond as the District Judge himself. Section 145(c) of the Code of Civil Procedure provides, to the extent material, that where any person has become liable as a surety for the fulfillment of any condition imposed on any person under an order of the Court in any suit or in any proceeding J consequent thereon, the decree or order may be executed against the surety to the extent to which he has rendered himself personally liable, in the manner provided for the execution of decrees. By the surety bond, the appellant rendered itself liable as a surety for the fulfillment of the conditions imposed on the Receiver under the orders passed by the court. Therefore, the order for the recovery of damages obtained by the respondent against the Receiver can be executed against the appellant to the extent to which it rendered itself personally liable under the terms of the bond.9. There is no substance in the second contention either. Under the bond, the appellant rendered itself liable "in respect of any loss or. damage occasioned by any act or default of the Receiver in relation to his duties as such Receiver as aforesaid". The fire having been caused due to the Receivers negligence in the performance of his duties the appellant is liable to make good the loss caused to the tea garden by the fire. Learned counsel for the appellant however urged that the appointment of the Receiver was limited to the stock-in- trade, machinery and movables in the tea garden an d to the factory premises and since the Receiver owed no obligation in relation to the tea garden, the appellant would not be liable for the loss caused thereto by the fire. Reliance is placed in support of this argument on the words "as aforesaid" which qualify the words "in relation to his duties". The surety bond has, undoubtedly, to be construed strictly but it is impossible to accept the contention that the Receiver owed no duty or obligation in respect of the tea garden. He was put in possession of the tea garden in his capacity as a Receiver and indeed parties had made contentions from time to time as to whether the tea garden was managed by the Receiver economically and efficiently. The surety bond would there fore cover the loss occasioned to the tea garden due to the Receivers default. It is significant that though the bond was executed six months after the tea garden was damaged by the fire it was given retrospective operation with effect from January 22, 1950 being the date on which the Receiver had taken possession of the mortgaged property including the tea garden.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We see no substances in this contention. The Subordinate Judge of Agartala may not be the successors-in-office of the District Judge because "successor-in-office" would mean successor of the District Judge in the post or office of the District Judge. But the Subordinate Judge, Agartala is, for the purposes of the present proceedings, a successor of the District Judge who was seized of the suit and who transferred it to the Subordinate Judge under the Tripura (Courts) order of 1950. The surety bond was executed in and for the purposes of the particular proceedings which were pending before the District Judge, in order that the bond should be enforceable at the instance of the presiding officer of the court. "Successor", therefore, must in the context mean the court which for the time being is seized of thethe order for the recovery of damages obtained by the respondent against the Receiver can be executed against the appellant to the extent to which it rendered itself personally liable under the terms of theis no substance in the second contention either. Under the bond, the appellant rendered itself liable "in respect of any loss or. damage occasioned by any act or default of the Receiver in relation to his duties as such Receiver as aforesaid". The fire having been caused due to the Receivers negligence in the performance of his duties the appellant is liable to make good the loss caused to the tea garden by the fire. Learned counsel for the appellant however urged that the appointment of the Receiver was limited to the stock-in- trade, machinery and movables in the tea garden an d to the factory premises and since the Receiver owed no obligation in relation to the tea garden, the appellant would not be liable for the loss caused thereto by the fire. Reliance is placed in support of this argument on the words "as aforesaid" which qualify the words "in relation to his duties". The surety bond has, undoubtedly, to be construed strictly but it is impossible to accept the contention that the Receiver owed no duty or obligation in respect of the tea garden. He was put in possession of the tea garden in his capacity as a Receiver and indeed parties had made contentions from time to time as to whether the tea garden was managed by the Receiver economically and efficiently. The surety bond would there fore cover the loss occasioned to the tea garden due to the Receivers default. It is significant that though the bond was executed six months after the tea garden was damaged by the fire it was given retrospective operation with effect from January 22, 1950 being the date on which the Receiver had taken possession of the mortgaged property including the tea garden.Under section 150 of theCode of Civil Procedure, save as otherwise provided, where the business of any Court is transferred to any other Court, the transferee Court has the same powers and is entitled to perform the same duties as those respectively conferred and imposed by the Code upon the transferor Court. The surety bond was a part of the proceedings pending before the District Judge and on the transfer of the Suit the entire proceedings, including the bond. stood validly transferred to the Court of the Subordinate Judge. Thus, by virtue of section 150, the Subordinate Judge was entitled to exercise the same powers in the matter of the enforcement of the bond as the District Judge himself. Section 145(c) of theCode of Civil Procedure provides, to the extent material, that where any person has become liable as a surety for the fulfillment of any condition imposed on any person under an order of the Court in any suit or in any proceeding J consequent thereon, the decree or order may be executed against the surety to the extent to which he has rendered himself personally liable, in the manner provided for the execution of decrees. By the surety bond, the appellant rendered itself liable as a surety for the fulfillment of the conditions imposed on the Receiver under the orders passed by the court.