Understanding Surety Liability in Maintenance Allowance Cases: Key Legal Insights
The case referenced (2020 CLC 970) involves the liability of a surety to pay the decretal amount in an execution petition under several legal provisions, including the Family Courts Act, the Contract Act, and the Civil Procedure Code (CPC). Here are the key points and principles derived from the judgment:
1. Liability of Surety:
The petitioner stood as a surety for the judgment debtor, who was later sent to civil prison.
The Executing Court directed the surety to pay the decretal amount, which he was obligated to do based on the surety bond submitted.
The surety moved an application to summon the father of the minors (the judgment debtor) to satisfy the decree, which was dismissed.
2. Obligation of Family Members:
If the father of the minors (judgment debtor) is poor, the grandfather, if financially capable, is obligated to maintain his grandchildren.
However, this right of the grandchildren to claim maintenance from their grandfather does not absolve the judgment debtor or the surety from making the payment.
3. Surety's Liability:
The liability of the surety is co-extensive with that of the principal debtor unless specified otherwise in the contract.
The surety had submitted a bond for Rs. 500,000 to be paid if the judgment debtor defaulted. This liability was not conditional upon any claim the minors might have against their grandfather.
The surety cannot claim that the decretal amount be recovered from the judgment debtor or any other party.
The arrest of the judgment debtor does not absolve the surety from the obligation to pay the decretal amount. The surety's liability is joint and several with that of the judgment debtor.
4. Procedural Aspects:
Although the provisions of the CPC, 1908, are not directly applicable to proceedings before the Family Court, the Family Court is empowered to adopt any procedure to regulate its proceedings and can incorporate principles from the CPC.
The surety can be proceeded against for enforcement of his liability as provided under Section 145 of the CPC.