Judgment Case ID: 1514

Judgment:
ivil Appeals Nos. 243	 344 and 45 of 59. Appeals from the judgment and order dated January 12	 195O of the Madras High Court in A. A. O. Nos. 288 to 290 of 1946. Alladi Kuppuswamy	 section B. Jathar and K. B. Choudhuri	 for the appellants	 A. V. Viswnatha Sastri	V. Vedantachari and T. Satyanarayona	 for respondent No. 2 (]in C. A. No. 345 of 59.) 923 T.V. R. Tatachari	 for respondents Nos. 3 to 6 (in C. A. Nos. 343 and 344 of 59) and respondents Nos. 5 to 8 (in C. A. No. 345 of 1959.) 1962. September 4. The Judgment of the Court was delivered by GAJENDRAGADKAR	 J. [ After disposing of Civil Appeals Nos. 343 and 344 of 1959	 his Lordship proceeded as follows]. That takes us to Civil Appeal No. 345 of 1959 in which the appellant wants liberty to proceed against the surety	 respondents Nos. 2 and 3. This claim has been rejected by both the High Court. But the decision of the High Court proceeds on the basis that the appellant was himself a defaulter and so	 he could not be permitted to enforce his remedy against the sureties. Since on the question of default	 we have come to a contrary conclusion	 it becomes necessary to examine whether the appellant is entitled to seek his remedy against the surety. In determining this question	 it is necessary first to enquire into the nature and extent of the liability undertaken by respondents Nos. 2 and 3 in executing the surety bond. The surety bond was executed on the 29th Sept. 1935. Clause 5 of the surety bond which is relevant provides that the sureties covenant that if the order of the High Court in C. M. A. No. 362/1929 be reversed or varied by the Privy Council and as a result of the said variation or reversal respondent No. 1 becomes liable to pay by way of restitution any amount to the said appellant in the Privy Council	 the sureties would pay whatever sum may become payable by the said respondent and that if they failed therein	 then any sum payable shall be realised in the man ner specified in the said clause. This bond was executed in the favour of the court. 924 The appellant contends that as a result of the decision of the Privy Council	 the matter was remitted to the trial Court for ascertaining the amount due to the appellant and it was during the pendency of the appeals which were pending in the Madras High Court against the decision of the trial Court on the applications made by the respective parties in the remanded proceedings that the compromise decree was passed between the appellant and respondent No. 1 and so whatever is claimable by the appellant by virtue of the said compromise decree must attract the operative portion of clause 5 of the surety bond. On the other hand	 Mr. Sastri for the surety agrees that the surety bond must be strictly construed and it is only if the amount claimed by appellant from respondent No. 1 can be said to be the result of the reversal or variation by the Privy Council of the orders under appeal before it that the surety bond can be proceeded against. Mr. Sastri urges that when disputes were pending between the appellant and respondent No. 1 before the Madras High Court	 the parties compromised the disputes and the compromise decree which followed acts as a discharge of the liability of the sureties. In support of this argument	 reliance is placed on the equitable principles underlying section 135 of the Indian Contract Act. Mr. Kuppuswamy contests this position and urges that section 135 is inapplicable to a surety bond executed in favour of a court and he argues that appellants remedy against the surety is not affected by the fact that the dispute between the appellant and respondent No. 1 was amicably settled and terminated in a compromise decree. This controversy raises the question as to whether section 135 of the Indian Contract Act or principles underlying it apply to surety bonds executed in favour of the court. Section 135 provides that a contract between the creditor and the principal debtor	 by which the creditor makes 925 a composition with or promises to give time to	 or not to sue	 the principal debtor discharges the surety	 unless the surety assents to such contract. There can thus be no doubt that a contract of suretyship to which section 135 applies would be unenforceable if the debt in question is compromised between the debtor and the creditor without the assent of the surety. But this provision in terms cannot apply to a surety who has executed a bond in favour of the court	 because such a contract of guarantee of suretyship does not fall within the scope of section 126 of the Contract Act. A contract of guarantee under the said section postulates the existence of the surety	 the principal debtor and the creditor	 and this requirement is not satisfied the case of a bond executed in favour of the court. Such a bond is given to the court and not to the creditor and it is in the discretion of the court to enforce the bond or not. Therefore	 there cannot be any doubt that in terms	 the provisions of section 135 cannot apply to a court bond. It is also clear that the equitable principles underlying the provisions of section 135 apply to such a bond. If	 for instance	 the decree holder gives time to the judgment debtor and promises not to seek his remedy against him during that period	 there is no reason why the extension of time granted by the creditor to the debtor should not discharge the surety even where the surety bond is executed in favour of the court. The reason for the equitable rule which entitles the surety to a discharge in such circumstances is that the surety should be able at any time to require the creditor to call upon the principal debtor to pay off his debt or himself pay off the debt and seek his remedy against the principal debtor. If the creditor has bound himself not to claim the debt from his principal debtor	 that materially affects the right 926 of the surety and so	 whenever time it; granted to the debtor by the creditor without the consent of the surety	 the surety can claim discharge. This equitable principle would apply as much to a surety bond to which section 126. of the Contract Act applies as to a surety bond executed in favour of the court. Therefore	 we see no justification for the argument that even the equitable principles underlying the provisions of section 135 of the contract Act should not apply to surety bonds executed in favour of the court. In determining the question as to whether liability under such a 'surety bond is discharged by reason of the fact that a compromise decree had been passed in the judicial proceedings in which the surety bond came to be executed	 it will always be necessary to examine the terms of the bond itself. Did the surety contemplate when he executed the bond that the dispute pending between the debtor and the creditor may be compromised	 or did be contemplate that the dispute would	 and must be settled by the court and not compromised by the parties? If the terms of the bond indicate that the surety undertook the liability on the basis that the dispute would be decided on the merits by the court in invitium and would not be amicably settled	 then the compromise of the dispute would discharge the liability of the surety (vide The Official Liquidators	 The Travancore National & Quilon Bank Ltd. vs The Official Assignee of Madras	(1) Parvatibai vs Vinayak Balvant (2); Mahomedalli Ibrahimji vs Laxmibai	 (3); Narsingh Mahton vs Nirpat Singh (4) and Muhammad Yusaf vs Ram Gobinda Ojha. (5) If	 on the other hand	 from the terms of the bond it appears that it was within the contemplation of the parties including the surety (1) I.L.R	 (2) I.L.R. (3) (1929) I.L.R. LIV Bom. (4) (1932) I.I.R. XI Patna 590. (5) (1927) I.L.R. LV Cal. 927 that the dispute may be amicably settled and the surety executed the bond knowing that his liability may arise even under the compromise decree	 then the passing of the compromise decree will not entitle him to claim discharge vide Haji Ahmed vs Maruti Ramji; (6) Appunni Nair vs Isack Mackadan	 (7) and Kanailal Mookerjee vs Kali Mohan Chatterjee (3). The question would thus always be one of construing the surety bond in order to decide whether a compromise decree discharges the surety or not. Turning to the bond passed by respondents Nos. 2 and 3 in the present case	 it is impossible to	 hold that it was within the contemplation of the sureties when they executed the bond that the parties would amicably settle their dispute in the manner they have done. At the time when the surety bond was executed	 the dispute pending between the parties was the money dispute the decision of which would have ended in an order directing one party to pay another a certain specified amount. The compromise decree has introduced complicated provisions for the satisfaction of the appellants claim against respondent No. 1. Under the compromise decree	 the appellant would have been entitled to take possession of the properties in suit and in that process	 rival claims of both the parties would have been adjusted. We are satisfied that the material terms in clause 5 of the surety bond could not be said to be attracted when the parties chose to settle their dispute in accordance with the terms of the compromise agreement. Besides	 it is clear that the compromise agreement gave time to respondent No. 1 and the decree was	 therefore	 not 'executable immediately after it was passed. In substance	 by the decree	 time was granted though it is true that time was granted to both the parties to discharge their respective obligations under (6) (1930) I.L R. LV Bom 97. (7) Mad. (8) A.I.R. 1957 Cal 645. 928 the compromise. That is another reason why we think the liability of respondents No. 2 and 3 under the surety bond is discharged as a result of the Compromise decree. There is yet another consideration which is relevant in dealing with this point. It is common ground that amongst the disputes which were settled between the parties was included the claim made by respondent No. 1 for damages on account of the fact that the appellant had created occupancy rights in favour of strangers in respect of the properties which were in his possession as a mortgagee. This claim is plainly outside the proceedings contemplated and permitted by the order passed by the Privy Council	 and yet this dispute has been settled by the compromise decree which means that a matter which was strictly not germane to the judicial proceedings in which the surety bond was executed has been introduced by the parties in their final settlement. Therefore	 we are satisfied that though the appellant succeeds in showing that he was not a defaulter	 he cannot seek his remedy against the surety	 respondents Nos. 2 and 3. An attempt was made by Mr. Kuppuswamy to suggest that respondents Nos. 2 and 3 should not have been allowed to raise ibis point before the High Court	 because no such point bad been taken by them in the trial Court. We do not think there is any substance in this argument. It is true that respondents No. 2 and 3 did not take any such contention in the trial Court	 but that may be because parties had then concentrated on the issue as to who was the defaulter. But when the appeals were argued before the High Court	 this point was specifically urged by respondent No. 2 and it has been considered by the High Court. No doubt Mr. Kuppuswamy ingeniously suggested that this was not a pure question of law and so	 the High Court 929 should not have allowed it to be raised for the first time in appeal. The argument is that if the point had been raised in the Court of first instance	 the appellant would have shown that respondents Nos. 2 and 3 bad consented to the compromise agreement between the appellant and respondent No . 1. This is clearly an afterthought. If the appellant 's case was that respondents Nos. 2 and 3 were not discharged by the compromise decree because they were consenting parties to the compromise agreement	 they should have stated so before the High Court and the High Court would then have either called for a finding on that issue or would have refused permission to respondents Nos. 2 and 3 to raise that point. The result is	 Civil Appeal No. 345 of 1959 fails and is dismissed with costs	 Appeal dismissed.

Summary:
Although section 135 of the Indian Contract Act does not in terms apply to a surety bond executed in favour of the court	 there can be no doubt that the equitable rule underlying that section must apply to it. The reason for the said rule which entitles the surety to a discharge is that he must be able at any time either to require the creditor to call upon the principal debtor to pay off his debt	 or himself to pay the debt and seek his remedy against the principal debtor. The question as to whether the liability of the surety is discharged by a compromise in the judicial proceeding in which the surety bond is executed must depend on the terms of the bond itself. If the terms indicate that the surety undertook the liability on the basis that the dispute should be 922 decided on the merits by the court and not amicably settled	 the compromise will effect a discharge of the surety. The Official Liquidators	 The Travancore National & Quilon Bank Ltd. vs The Official Assignee of Madras 1. L. R 	 Parvatibai vs Vinayak Balvant	 1. L. R. 1938 Bom. Mahomedalli Ibrahimji vs Laxmibai	 (1929) I. L. R. LIV Bom. II 8	 Narsingh on vs Nirpat Singh	 (1932) I. L. R. XI Patna 590 and Muhammad Yusaf vs Ram GobindaOjha	 (1927) 1. L. R. LV Cal. 91	 referred to. But if the terms show that the parties and the surety contemplated that there might be an amicable settlement as well	 anti the surety executed the bond knowing that he might be liable under the compromise decree	 there can be no discharge and the surety will be liable under the compromise decree. Haji Ahmed vs Maruti Ramji	 (1930) 1. L. R. LV Bom. Appunni Nair vs Isack Mackadan	(1919) 1. L. R. 43 Mad. 272 and Kanailal Mookerjee vs Kali Mohan Chatterjee	 A. 1. R. 	 referred to. Consequently	 in the present case where the surety bond was executed in favour of court and by it the sureties undertook to pay certain amount of money on behalf of the respondent if decreed by the court and the compromise decree between the parties introduced complicated provisions enabling the e appellant to take possession of the properties in adjustment of rival claims	 granted time	 albeit to both the parties	 to discharge their obligations thereunder and included matters extraneous to the judicial proceedings in which the surety bond was executed. Held	 that the sureties stood discharged by the compromise decree.