Code of Civil Procedure, 1908 (CPC)
Sureties and Representatives: Sections 145 and 146 CPC
A decree binds the parties, but litigation frequently draws in others. A surety stands behind a party and promises that he will perform; a transferee or legal representative takes the party's place and claims what he claimed. Sections 145 and 146 of the Code of Civil Procedure, 1908 deal with both: the first makes a surety's liability enforceable in execution rather than by a fresh suit, and the second allows a proceeding to be taken by or against any person claiming under a party. These notes cover each, with their limits.
The surety behind the party, and the person who steps into his shoes
1. Section 145: Enforcement of a Surety's Liability
§ Section 145, CPC 1908 Where any person has become liable as surety — (a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a decree, or (c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed to be a party within the meaning of section 47: Provided that such notice as the Court in each case thinks sufficient has been given to the surety. |
§ Five points on Section 145 Each is examinable: • Three occasions of suretyship. For the performance of a decree, for the restitution of property taken in execution, and for the payment of money or the fulfilment of a condition imposed under an order of the court. • Execution, not a fresh suit. This is the whole purpose of the section. Without it the decree-holder would have to sue on the bond; with it, he proceeds against the surety in the execution itself. • Only to the extent of his personal liability. The surety is bound by the terms of his bond and no further. A bond limited to a sum, or to a particular obligation, limits the execution accordingly. • Notice is a condition. By the proviso, such notice as the court thinks sufficient must be given to the surety before the decree is executed against him. • He is deemed a party for Section 47. So questions between him and the decree-holder relating to the execution, discharge or satisfaction are decided by the executing court, and he has the corresponding right of appeal from that determination. |
§ Where sureties arise in the Code Order XXV Rule 1: security for the costs of the defendant, given by or for the plaintiff. Order XXXVIII Rules 2 and 5: security for the defendant's appearance, and security to produce property, in place of arrest or attachment before judgment. Order XXXIX and Order XL: undertakings and security required on the grant of an injunction or the appointment of a receiver, and the receiver's own security under Order XL Rule 3(a). Order XLI Rule 5(3)(c) and Rule 10: security for the due performance of the decree as a condition of a stay of execution pending appeal. Order XLV Rule 7: security for the respondent's costs on an appeal to the Supreme Court. In every one of these, Section 145 supplies the machinery by which the security is realised if the condition is broken. |
2. Section 146: Proceedings by or Against Representatives
§ Section 146, CPC 1908 Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. |
§ Four points on Section 146 • Who claims under a party. Assignees and transferees of the subject matter or of the decree, legal representatives of a deceased party, purchasers of the interest in suit, and others who derive their title from a party. The expression looks to derivation of title, not to a shared interest. • What the section permits. It lets such a person take a proceeding or make an application that the party himself could have taken or made. It is an enabling provision, designed to prevent the machinery of the Code from failing merely because the original party has parted with his interest or died. • He takes no more than his predecessor had. A person claiming under a party cannot do what the party himself could not do, and he takes the proceeding subject to everything that had already happened in it, including admissions, findings and orders binding on his predecessor. • Save as otherwise provided. The opening words are the key limit. Where a specific provision governs the situation, that provision applies instead of the general rule: Order XXI Rule 16 for the transferee of a decree, Order XXII for devolution during the suit, and Section 50 for execution against the legal representative of a deceased judgment-debtor. |
3. The Two Sections Compared
Basis | Section 145, the surety | Section 146, the representative |
|---|---|---|
His relationship to the party | He stands BEHIND the party, promising that the party will perform | He steps INTO the party's place, deriving title from him |
What the section does | Makes his liability enforceable in execution instead of by a separate suit | Allows him to take a proceeding or make an application that the party could have taken |
Direction of the burden | Against him: the decree is executed against the surety | Either way: the proceeding may be taken by or against the person claiming under a party |
Limit | Only to the extent to which he rendered himself personally liable by the bond | No more than his predecessor had; and the section yields to any specific provision |
Procedural safeguard | Notice as the court thinks sufficient, under the proviso | The ordinary safeguards of the proceeding in which he appears; and Order XXI Rule 22 where execution is sought by or against him |
Status in execution | Deemed a party for the purposes of Section 47, and so for appeal from a determination under it | A party by substitution or addition, according to the provision under which he comes on the record |
4. Related Provisions in Execution
i. Order XXI Rule 16: transferee of a decree. Where a decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution; but notice must be given to the transferor and the judgment-debtor, and the decree is not executed until the court has heard their objections. By Section 42(4)(a), a transferee court cannot entertain such an application; it lies to the court that passed the decree.
ii. Order XXI Rule 22: notice. Notice must issue where execution is applied for by an assignee of the decree, or against the legal representative of a party, which is the procedural counterpart of Sections 145 and 146 in execution.
iii. Section 50: legal representatives. Where a judgment-debtor dies before the decree is satisfied, execution may be taken against his legal representative, who is liable only to the extent of the estate that has come to his hands and has not been duly disposed of.
iv. Order XXII Rule 10: devolution during the suit. Where an interest devolves during the pendency of the suit, the suit may, by leave of the court, be continued by or against the person to whom it has come, without any abatement.
v. Section 52, Transfer of Property Act, 1882. A transferee pendente lite is bound by the decree whether or not he is brought on the record, and Order XXI Rule 102 denies him an adjudication when he resists delivery.
5. Landmark Points
- Section 145. A surety's liability for the performance of a decree, for restitution, or for payment or fulfilment of a condition, is enforced in execution, to the extent of his personal liability, after such notice as the court thinks sufficient.
- The closing words of Section 145. The surety is deemed a party for the purposes of Section 47, so questions between him and the decree-holder are decided in the execution.
- Section 146. Save as otherwise provided, any proceeding or application that may be taken or made by or against a person may be taken or made by or against any person claiming under him.
- The limit in Section 146. A person claiming under a party takes no more than his predecessor had, and the section yields to any specific provision such as Order XXI Rule 16 or Order XXII.
- Order XXI Rules 16 and 22. The transferee of a decree applies to the court that passed it, on notice to the transferor and the judgment-debtor, and notice is required where execution is sought by an assignee or against a legal representative.
6. Frequently Asked Questions
How is a surety's liability enforced under Section 145?
By execution of the decree or order against him, in the manner provided for the execution of decrees, to the extent to which he has rendered himself personally liable, and after such notice as the court in each case thinks sufficient has been given to him.
Can a separate suit be filed against a surety?
The purpose of Section 145 is to avoid one. It makes the liability enforceable in the execution itself, which is faster and keeps the matter before the court that took the security. The surety is also deemed a party for the purposes of Section 47, so disputes about his liability are decided in that execution.
In what situations does a surety become liable?
Where he has become liable as surety for the performance of a decree or any part of it, for the restitution of property taken in execution, or for the payment of money or the fulfilment of a condition imposed on any person under an order of the court in a suit or a proceeding consequent on it.
Who is a person claiming under a party?
Someone who derives his title from a party: an assignee or transferee of the subject matter or of the decree, a legal representative, or a purchaser of the interest in suit. The test is derivation of title, not a merely similar interest.
What can a person claiming under a party do?
Under Section 146 he may take any proceeding or make any application that the party himself could have taken or made, save as otherwise provided by the Code or any other law. He takes no more than his predecessor had, and takes the proceeding as he finds it.
When does Section 146 not apply?
Where a specific provision governs the situation. Order XXI Rule 16 deals with the transferee of a decree, Order XXII with devolution during the suit, and Section 50 with execution against the legal representative of a deceased judgment-debtor. The opening words of Section 146 give way to each of them.
7. Related Topics in This CPC Series
- Legal Representatives in Execution: Sections 50 and 52
- Order XXII: Death, Marriage and Insolvency of Parties
- Application for Execution under Order XXI
- Restitution under Section 144