Sarjoo Prosad, C.J.@mdashThis appeal arises out of an execution case. The decree holder, who is the Respondent before us, instituted a suit for recovery of a sum of money against the Defendant. The suit was registered on the 10th November, 1948, and a couple of days thereafter he filed a petition-under Order 38, Rule 5 of the CPC praying for attachment of certain properties before judgment.
The Court issued a conditional order of attachment as prayed for in respect of some logs of timber said to be belonging to the Defendant and then lying at Dhubri ghat. It also issued notice on the Defendant to show cause,_ if any, why orders for furnishing security to the'' extent of'' Rs. 9,000/-should not be passed against him. in the meantime, it appears that the attachment order was served and one Hemendra Narayan Das and a boat-man in charge of the timber were allowed to retain custody of the same on giving an undertaking to the Court to produce them when required.
The timber consisted of 244 pieces of Sal wood approximately valued at Rs. 7,000/- and the boat at about Rs. 1,000/-. The total valuation of the property attached was thus fixed at Rs. 8,000/-. An undertaking by the persons in custody of the iiiroperties attached was given on the 22nd November; 1948-'' " When the case was taken up on the 26th December, 1948, it appears that a claim petition was filed''on behalf of one Kumar Jagadindra Narayan Deb, a minor, through a next friend, stating that th''e attached timber belonged to him and not to the judgment debtor and that therefore the said properties should be released from attachment. But before this claim petition came to be heard or disposed: of, on the very same day the Defendant furnished security and the property was thus released from attachment and the attachment order was recalled. The order which was passed on the claim, petition itself runs as follows:
Security furnished. The property is therefore released from attachment. No action is necessary on this application Pile.
In the ordersheet of that date the court recorded that one Kumar Jatindra Narayan Deb stood surety; for the attached property; as such surety had been ;furnished by the Defendant, the property was released from attachment and accordingly intimation should be sent to the jimmadars, who were In custody of the property.
The surety Kumar Jatindra Narayan Deb who Is the Appellant here then executed a surety bond according to the usual form prescribed by the law. Under the terms of the bond it was agreed that the Defendant shall produce or place at the disposal of the Court when required, the property specified in. the schedule, or the value of the same or such portion thereof as might be sufficient to satisfy the decree and in default of so doing, the surety bound himself, his heirs and successors to pay the same amount in court at the order of the court to the tune of Rs. 8,000/- or such sum not exceeding the amount as the court might adjudge.
2. Eventually, a compromise decree was passed in the suit on the 18th of November, 1949 for a sum of Rs. 7,000/- in favour of the plaintiff -decree-holder. This amount was payable in fotf r instalments. We understand that a large part of the, amount has been paid, but as some amount still remains due, the decree-holder took out execution -of the decree. He has proceeded to execute the decree against the surety u/s 145 of the Code of Civil Procedure. The surety substantially raised two objecttonfcto the execution of the decree. He contended ''that'' his liability under the bond had ceased firstly ''because the property which was ordered to be released from attachment was never actually released, and secondly because the decree being an instalment decree without his consent and on compromise between the decree-holder on one hand and" the Defendant judgment-debtor on the other, he could no longer be liable for payment of the amount under the decree in question. The learned Subordinate Judge overruled these contentions and the appeal is now presented against that order.
3. Mr. Ghose on behalf of the Appellant has presented the case with his usual force and plausibility. In dealing with the first point that the attached property was not actually released from attachment. Mr. Ghose contends that although the direction of the Court was that the properties should be delivered, the properties were not delivered because one of the jimmadars who had custody of the properties had fled away and was not available. He, therefore, says that his liability, If any, under the terms of the security bond, came to an end; and he did in fact make an application for his discharge which remained pending and was never disposed of by the court.
In this connection Mr. Ghose refers to certain papers which have a bearing on the point. I have already said that on the date when the learned Subordinate Judge accepted the surety bond and recalled the conditional order of attachment, he also passed an order directing release of the properties. In the order it Is indicated that inasmuch as the applicant Kumar Arlndra Narayan stands surety for the attached property and security has been furnished by the Defendant, the properties were released from attachment.
The persons in custody were therefore, ordered to release the said timber on receipt of the notice. It appears that when the notice was served upon one of the persons in custody Hemendra Narayan Das, he stated that he was liable only in respect of 19 pieces of timber which he could deliver but not in regard to the rest. As to the boat-man, the report appears to be that he was not to be found and his whereabouts were "unknown; he appears to have escaped and gone away with his boat and therefore the notice could not be served upon him. Mr. Ghose''s client then seems to have presented an application on the 23rd December, 1948 in which he stated that as one of the jimmadars Ram Nihore Majhi appears to have made himself scarce with the boat and the attached logs, he could not get delivery of the property and therefore he prayed that he should he relieved of the obligations under the security bond, which he had executed. \\
I should have stated that on the 6th December, 1948 there was also a petition filed by the Plaintiff himself on the contents of which also reliance has been placed by Mr. Ghose. In that petition the Plaintiff alleged that although the properties were kept in Goalpara ghat under the orders of the Court in jimma of one Hemendra Narayan Das and Ram Nihore Majhi, he had information that the said property had been stolen, most probably by the Defendant or at his instance. He further alleged that the Defendant was a man of Pakistan and it was apprehended that the properties had been removed by river route towards Pakistan and if the Goalpara boundary were crossed, it would be impossible to recover them. The Plaintiff therefore prayed that the Deputy Commissioner, Goalpara and the Superintendent of Police there should be directed by telegram to-have the timber and the boat seized immediately.
On this petition the court passed an order to the effect that it was not necessary to send a telegram, but the Deputy Commissioner and the Super* intendent of Police, Goalpara should be informed, to take action to seize the properties. The Plaintiff was also given permission to carry the order personally to those officers if he so desired.
It is contended on behalf of the Appellant that these papers indicate that admittedly the properties had been lost and the Appellant never got possession of them and that therefore there was no consideration for the security bond in question which as such became unenforceable. These documents in our opinion, do not assist the case Of the Plaintiff. Even assuming that the majhi who had the custody of the properties surreptitiously removed them, the Appellant could not be absolved of his liability under the security bond.
This was an undertaking given by the defendant and the surety for the satisfaction of the decree irrespective of any conditional order of attachment and of the fact as to where the properties were. Rule 5 of Order 38 requires that
Where, at any stage of a suit, the Court Is satisfied, by affidavit or otherwise, that the Defendant, with intent to obstruct Or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the Defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, and the Court may also pass a conditional attachment order of the whole or any part of the property specified.
It was-in pursuance of this order that the security bond in question had been executed and is in terms of Form No. 6 of Appendix F of the CPC Code.
Here the undertaking given by the Defendant or 4&e surety was either to produce the property or the-yalue of the same in court when so required to the satisfaction of the decree that might be eventually passed in the suit. In the eireiim:;Ln,noe.s of this case all that happened was that the conditional order which had been issued by the Court attaching the property had been withdrawn and information of that withdrawal was sent to the persons who were in custody of the properties.
The Court at that stage had not even decided about the claim which had been preferred in respect thereto, because as soon as the claim petition was filed, the judgment-debtor offered to give the security required and on that security having been given the Court did not consider it necessary to decide about the claim and directed release of the properties.
Plaintiff''s allegation was that these logs were likely to be removed by the Defendant or at his instance. The logs may have been removed with the knowledge that Defendant was going to furnish adequate security for the performance of the decree and that a recall of the conditional order of attachment would inevitably follow. But whatever the position may be, the fact remains that the Defendant and the surety bound themselves on the terms Of the bond either to produce the property or to produce the value thereof, when directed by the Court for satisfaction of the decree which might be eventually passed. Under the law the surety bond had to be given irrespective of any conditional order of attachment and even without trie existence of any such order. It is not possible for the surety therefore to take advantage of the removal of the logs by the Defendant or somebody in his behalf or by the boat-man who was for" the time being in custody thereof.
4. Mr. Ghose has argued that the rroperty was in custody of the Court in view of the order of attachment and in view of the jirnmanama which had been given by the boat-man and Hem-- endra Narayan Das. In one sense it may be that the property was in the custody of-the Court; but if anybody suffered on account of that it may be either the judgment-debtor or the claimant. These persons are making no grievance on that score.
In fact they never went before the Court asking for the return of the properties in question, or made any protest to the Court that the properties had not been delivered back to them. The Appellant, of course, presented an application on the 23rd of December, 1948 seeking to be relieved of his obligation under the security bond, but as the learned Subordinate Judge rightly observes, this application does not appear to have been pressed; and possibly in view of that no final orders came to be passed thereon. It does not appear that on the 23rd December the petition was at all pressed before the Court which was a date fixed for filing written statements. The attention of trie Court was not drawn to this petition nor does it appear that it was ever moved in the matter.
The surety bond therefore stood where it was, and the legal consequence which followed from it [ could not be extinguished by the circumstances on i which reliance has been placed on behalf of the \\ Appellant. As I have "saijsi the security was pre-sumably offered in spite of the knowledge of the '''' fact that the logs had been removed.
5. The second contention of Mr. Ghose is that in view of the compromise decree passed in the'' suit making the decree payable in instalments) there was no further liability on the surety to satisfy the decree. This argument presupposes that a security bond executed in pursuance of an order passed under Order 38, Rule 5 will not be operative in case of a consent or compromise decree.
On an examination of the rule itself, it appears that there is nothing to-limit the meaning; of the term decree as used in that rule. It may relate to a decree passed on adjudication by Court. or on consent or compromise between the parties,'' provided the decree in question is neither collusive nor fraudulent nor obtained with a view to i prejudice the interests of the surety. Even if the surety is not a consenting party to the decree It; would as well affect him provided, under the terms! of the bond itself the liability of the surety is'' limited in any manner. ''''
In the present case there is no such limitation] in the bond itself. The matter eventually rests! upon construction of the surety bond. I have-l already referred to the relevant terms of the bondi at a previous stage, which show categorically that the surety and the Defendant made themselves, liable to produce the property specified in the schedule or the value of the same or such portion as might be sufficient to satisfy the decree and ia default the surety bound himself and his heirs and executors to pay in Court or at its order the-sum of Rs. ti.OOO/- or such amount not exceeding the sum as the court might adjudge proper.
There is no case here that the decree is either fraudulent or collusive or that it in any manner exceeds the liability of the surety over the amount indicated in the surety bond. The decree continues to be a decree for payment of money though* it is payable in instalments. Mr. Ghose concedes-that if a decree had been passed by the Court and not on consent directing that the money should be paid in instalments that decree might have been binding upon the surety. If that is so, there is no reason why this decree also though a consent -decree and payable in instalments should not be equally binding on him unless he had succeeded in showing otherwise that the liability under the surety bond had been extinguished.
6. In support of the contention Mr. Ghose relied upon a decision of the Calcutta High Court
His Lordship referred with approval to a decision of the Bombay High Court: Ahmed Karim. v. Maruti Ravji AIR 1931 Bom 55 (C) wherein & Division Bench of that Court took a similar view. Mr. Ghose also relied on''Anr. Single Judge decision of the Madras High Court Eomml Rocldl:
The other decision of a Division Bench of the . Patna High Court
For the present, therefore, I am inclined to accept tiie view expressed by Chief Justice Rankin,:in the Calcutta decision, where he found it dim-cult to hold that in the circumstance; of a decree -of this kind, the liability of the surety would be -extinguished merely because it happened to be a ''consent decree.
Both these contentions are, therefore, untenable and have to be rejected.
7. The appeal must, therefore, be dismissed with costs and the order of the learned Subordinate Judge upheld.
Ram Labhaya, J.
8. I agree.
