Laxmichand vs Gokal Prasad and Another

Nawalkishore, J.—This is a pltf''s appeal against the judgment of the learned Dist J., Jodhpur, holding that the terms of surety bond did not make the surety liable in the execution proceedings. The facts relating to this case are these:

Laxmichand applt instituted a suit against Rao Raja Gordhansingh for the recovery of Rs. 2,249/- in the Ct of Civil Judge, Jodhpur, & on 23-2-1949 applied for the issue of a warrant of arrest before judgment against the deft under Order 38, Rule 1, C. P. C. On 28-2-1949, a warrant was ordered to be issued accordingly & Gokal Prasad, resp, stood surety & executed a bond as follows:

^^eqdnek eqUntkZ vucku esa eqnk;ys ds cj f[kykQ gLc vkMZj 38 :y 1 tkjh gqvk vkSj tekur nsus dk gqDe btykl okyk ls gwvk bl fy;s eSa eqlEeh xksdy izlkn oYn f''koykyth y<+k lkfdu tk/kiqj eqlEeh xksj/ku flag oYn fotSflag eqnk;yk dh tekur rknknh :- 2249�nsrk gwa fd eqnk;ys xkj/ku flag gj is''kh ij gkftj jgsxk vkSj u viuh tk;nkn bLrfoLr djsxk A vxj og is''kh ij gkftj ugha gqvk ;k tk;nkn bLrfoLr djsxk rks eSa [kqn :- 2249� vnk d:axk A**

Shortly after the execution of this bond, the parties appear to have come to terms & accordingly, on 4-4-1949 a consent decree was passed against Gordhansingh. On 14-4-1949, Gokal Prasad surety applied under Order 38, Rule 3 for being discharged from his obligation as a surety. A notice was issued to the deft but service could not be effected upon him. Even a warrant of arrest issued against the deft could not be executed & hence the surety''s appln remained undisposed of. In the meanwhile, Laxmichand filed an appln for execution of the decree & on 13-10-1949, a notice was issued to the surety either to produce the judgment-debtor or deposit the amount of the bond. The 14-11-1949 was the date fixed but the judgment-debtor was not present &, accordingly, the surety was directed to deposit Rs. 2,249/-. Against this order, an appeal was filed in the Ct of the learned Dist J., who set aside the order of the trial Ct & held that the surety was not liable as he had undertaken to produce Gordhansingh only in the suit & not in the execution proceedings.

After hearing the learned counsel for the parties, I am of the opinion that the conclusion arrived at by the learned Dist J. is correct. The bond was executed after a warrant of arrest had been issued in term of Order 38 Rule 1 which were to the effect that Rao Raja Gordhansingh was to be taken into custody & brought before the Ct in order that he may show cause why he should not furnish security for the amount of Rs. 2,249/- for his personal appearance before the Ct until such time as the said suit was fully & finally disposed of ''until satisfaction of decree that may be passed against him in the suit''. According to Form No. 2 in Appendix F, C. P. C., bond is intended to be executed in these very words, that is, the surety undertakes that the deft shall appear at any time when called upon while the suit is pending & ''until satisfaction of any decree that may be passed'' against him in the said suit. The bond in suit was, however, not executed in these terms & it is clear that Gokal Prasad undertook to produce the deft only in the suit & agreed to pay the sum of Rs. 2,249/- in case he failed to do so or if the deft disposed of his property. He did not mention in the bond that the deft will appear not only while the suit was pending but also until satisfaction of any decree that may be passed against him. The question whether a surety has incurred liability under the bond always depends upon the strict terms of the bond & he cannot be held liable except to the extent to which he has bound himself. If the contingency, in which the bond is sought to be enforced, does not fall within its language, as held; in V.T. Elaya Pillai Vs. A.M. Muhammad Ibrahim Sahib and Others, it is not permissible to override that language in the light of what the parties intended if they did not succeed in expressing that intention in suitable language. The learned counsel for the applt cor cedes the force of these principles but urges that the bond should be construed in the light of the circumstances & the order in pursuance of which the bond came to be executed. He has cited AIR 1932 131 (Privy Council) in support of this proposition but it is clear from a perusal of this judgment that the circumstances & the order directing the security to be given are to be resorted to only where there is a doubt or difficulty about the construction of the language of the bond, in this case, on a plain perusal of the bond, no such difficulty arises. A reference has been made during the course of arguments to an appln dated 14-4-1949 made by the surety himself in which he affirmed the position that he had executed the bond under Order 38, Rules 1 & 2, C. P. C, & it has accordingly been contended that whatever be the language of the band, it must be held that the surety had undertaken to produce the deft in the execution proceedings as well. This, however, is not a correct proposition. The bond was no doubt executed in pursuance of an order passed under Order 38, Rule 1 but the Ct must still resort to the language of the bond itself & then determine the extent to which the surety had undertaken the liability. If it is only during the proceedings in connection with the suit & execution proceedings are not mentioned in the bond, the liability must be restricted to the extent to which it has been undertaken. The learned counsel argued that the word "suit" should be deemed to include execution proceedings. This contention however is contrary to the plain language of Order 38, Rule 2 where suit has been mentioned as something different from proceedings in the execution of a decree. This view prevailed in a judgment by Bapna J. in ''Shyamdas v. Firm, Budhmal'', (Civ App No. 38 of 1949) where it was held that under Order 38, Rule 2, execution proceedings had been differentiated from suits. I respectfully agree with the view taken in that judgment & have no hesitation in rejecting the contention of the learned counsel for the applt. The result is that this appeal fails & is hereby dismissed with costs.