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Second Appeal No. 187 of 1963, decided on 15th June 1967.

O. XLI, r. S‑Stay of execution‑Interim stay granted by High Court on condition that judgment‑debtor furnished security for amount of decree‑Final order on application under O. XLI, r. S directing judgment‑debtor to deposit decretal amount within two months, otherwise stay will stand vacated‑Judgment‑debtor failing to deposit amount- Held that life of interim stay was extended only by two months and that surety was not liable on his bond after judgment‑debtor had failed to deposit the decretal amount.

M. G. Dastgir for Appellant.

Muhammad Ali Sayeed for Respondents.

Dates of hearing : 15th and 16th December 1966.

This is a second appeal by Muhammad Sultan, surety of Amir Abbas, judgment debtor, respondent No. 2, and has arisen in the following circumstances. Saith Fazal Hussain instituted Suit No. 2 of 1959 in the Court of Civil Judge, 1st Class, Khairpur, against Amir Abbas, respondent No. 2, for the recovery of Rs. 5,000 odd and the suit was decreed by the Civil Judge with costs. Thereafter, Saith Fazal Hussain, decree‑holder, filed execution application for the recovery of the amount of the decree praying therein that respondent No. 2, the judgment‑debtor, be arrested and detained in prison. In the meantime respondent No. 2 by filing an appeal in the High Court against above-mentioned judgment and decree had obtained an interim stay order for the execution of the decree by arrest upon the condition that he furnished security to the satisfaction of the lower Court. Pursuant to the above‑mentioned interim order of the High Court Muhammad Sultan appellant stood surety for respondent No. 2 and executed the security bond on 25th November 1959. When the application under Order XLI, rule 5, C. P. C., filed by the respondent No. 2 came up for hearing on 18th Aril 1960 before the High Court Mr. Justice Inamullah Khan passed the following order:

"If the appellant deposits in Court the decretal amount within 2 months the execution of the decree to be stayed. In case the appellant does not deposit the security within 2 months the order of stay will stand vacated."

The judgment‑debtor, respondent No. 2, did not deposit the amount in cash within the period of two months fixed by the High Court and the Application No. 1 of 1959 made by respondent No. 1 the decree‑holder was dismissed in default on 17‑6‑60. Thereafter, the decree‑holder again filed an Application No. 69 of 1960 on 6th of July 1960 for the arrest and detention of respon dent No. 2 and this time his execution Application was dismissed on merits on 3rd November 1960. On 29th May 1962 the respondent No. 1 filed execution Application No. 2 of 1962 praying that the respondent No. 2, judgment‑debtor be called upon to pay the amount and in case he failed to do so the property of Muhammad Sultan, surety, the appellant be attached and sold. This application was contested and the trial Court dismissed the application on 23‑10‑62 holding that the appellant was not liable for payment of the amount. Thereupon, the decree‑holder filed Appeal No. 2 of 1962 in the Court of the District Judge, Khairpur who accepted the appeal and by his order dated 30th April 1963, directed the execution to proceed against the surety. Hence this second appeal by Muhammad Sultan, the surety, against the above‑mentioned order dated 30th April 1963, of the District Judge, Khairpur.

2. Learned counsel for the appellant has contended that the appellant had stood surety in the context of the order dated 11th November 1959 which was an interim stay order arid that since the judgment debtor, respondent' No. 2, had failed to deposit the decretal amount within two months of the order dated 18th November, 1960, the stay order stood vacated and the responsi bility of the surety to make payment on behalf of respondent No. 2, the judgment debtor, disappeared. The contention of the learned counsel for the appellant is not without force. Muhammad Sultan appellant became a surety only pursuant to the interim) stay order passed by the High Court in connection with the appeal filed by Amir Abbas, respondent No. 2 against the judgment and decree of Civil Judge, 1st Class, Khairpur Then the first application for execution of the decree by the arrest and detention in civil prison of the judgment‑debtor was pending before the executing Court. It is obvious, therefore, that the interim stay order dated 11‑11‑59 of the High Court was made with reference to that application for execution. On 18‑4‑60 the High Court made a final order in the stay 'proceedings to the effect that the cash deposit of the decretal amount should be made within two months otherwise the stay order would stand vacated This means that the previous interim stay order was to last only for a period of two months more if the decretal amount was not deposited in cash in Court. No such deposit was made in Court either by the judgment‑debtor or the surety. On the other hand when the execution application came up before the Court on 17‑6‑60 the decree‑holder being absent, it was dismissed in default This means that not only the interim stay order stood vacated two months after the passing of the order dated 18‑4‑60 of the High Court, the original application for execution of the decree also lapsed on 17‑6‑60. It appears to me therefore, to be quite clear that the surety bond that had been furnished lay the appellant Muhammad Sultan in the context of the interim stay order dated 11‑11‑1959 was extinguished on 17‑6‑60, the last date of the period set by the High Court for the deposit of the decretal amount when the execution application itself was dismissed in default.

3. Learned counsel for the respondent has contended before me that the liability of Muhammad Sultan appellant to pay up the decretal amount remained unaffected by the circumstances of the dismissal of the execution application in default and the above mentioned order dated 18‑4‑60 of the High Court. He has further urged that under section 145 of the C. P. C., when any person has become liable as surety for the purposes of any decree or part thereof; the decree or order can be executed against him to the extent to which he has rendered himself personally liable. He has further argued that by executing the surety bond the appellant had given a contract of guarantee in terms of section 126 of the Contract Act and under section 128 of the Contract Act, his liability had become co‑extensive with that of the judgment debtor. The learned counsel also cited before me some judgments in support of his different contentions but it is not necessary to notice the purport of those judgments. The following judgments were cited by the learned counsel for the respondent:

(1), Hiralal Ambalal v. Manila) Maganlal A I R 1926 Bom. 565.

(2) Reasat Ali Khan v. Mafuz Ali Khan and others A I R 1929 Lab. 770.

(3) Keshavlal Harilal v. Pratapsing Mohotalbhai and others A I R 1932 Bom. 168.

(4) Madanlal Motilal v. Radhakisan Laxminarain A I R 1935 Nag. 258.

(5) Shyamial Ramkrishna Agarwal and another v. Takhatmal Bodhraj and another A I R 1957 Madh. Pr. 98.

(6) Lal Muhammad and another v. Emperor A I R 1936 Lah. 470.

(7) B. Jang Bahadur Singh and others v. Besdeo Sing and others A I R 1936 All. 549.

(8) Hazari Lal and another v. Chaju.Ram and others A I R 1960 Raj. 319.

4. I have carefully examined these judgments but I find that none of them relates to circumstances similar to those with which I am called upon to deal in this appeal. As regards the contention of the learned counsel that the surety bond furnished by the appellant was in the nature of a contract of guarantee, it is inter esting to note that two of the judgments cited by the learned counsel for the respondent himself namely Shyamlal Ramkrishna Agarwal and another v. Takhatmal Bodhraj and another' and Medanlal Motilal v. Radhakisan Laxminarain have expressed the view that the obligation which a surety incurs under the bond which he gives to the Court under the Code of Civil Procedure is excluded from the definition of a contract of guarantee as contained in the Contract Act. To my mind it is quite clear that the bond dated 25‑11‑59 has to .be interpreted in the light of the circumstance in which it was executed. As already pointed out it was executed pursuant to an interim stay order conveyed by the Deputy Registrar to the executing Court by letter dated 13‑11‑59 Exh. 8. If this interim stay order had been confirmed when the stay matter came up befog the High Court on 18‑4‑60 the liability of Muhammad Sultan under the bond executed by him might have remained. But what happened on 18‑4‑60 was that the interim stay order which directed the stay on furnishing of security to the satisfaction of the executing Court, was superseded by a new order of the High Court. This order as already set out was as follows:

"If the appellant deposits in Court the decretal amount within two months the execution of the decree to be stayed. In case the appellant does not deposit the security within two months the order of stay will stand vacated."

By this order obviously the life of interim stay was extended only to two months at the end of which period it was to be examined whether the decretal amount had been deposited or not; and if it was found that the decretal amount had not been deposited the stay order was to be deemed to have been vacated. The above mentioned order of the High Court clearly means that the security already furnished at the instance of the judgment‑debtor under the interim stay order remained in force only for another two months and that by the end of that period the security furnished by the surety of the judgment‑debtor was to lose all meaning and that unless it was found by the executing Court that the decretal amount itself was deposited in cash by the judgment debtor the penalty that he would incur would be that the stay of execution ordered under the interim stay order dated 11‑11‑59 would cease to be valid. It appears to me that the failure on the part of the judgment‑debtor to deposit the decretal amount within the period of two months of the order dated 18‑4‑60 would in any case have resulted in the vacation of the stay order and within it the discharge of the surety from the liability he had incurred under the superseded interim stay order. But in the present case the additional circumstances apart from the failure of the decree holder to deposit the decretal amount in terms of the order dated 18‑4‑60 of the High Court that arose was, that the decree‑holder himself contributed to the vacation of the stay order by suffering his execution application to be dismissed in default.

5. Furthermore, the circumstance that after the first execution application of the respondent was dismissed in. default, the decree‑holder respondent filed yet another execution applica tion against the judgment‑debtor for recovery of the decretal amount on pain of the decree being executed against him by his arrest and detention in civil prison shows that the respondent himself understood the security bond furnished by the appellant to have lapsed with the dismissal in default of his first application and with the, expiration of the period of two months from the order dated 18‑4‑60 of the High Court. The second application asking for execution by arrest and detention of the judgment‑debtor could not and would not have been made if the security furnished by the appellant under the interim order dated 11‑11‑59 had yet been in force and had already not become extinct on account of dismissal in default of his previous execution application and the ipso facto vacation of stay order on account of the ‑non‑deposit of the decretal amount. It was after the second application of the respondent was dismissed on merits that the respondent filed his 3rd execution application in which he prayed that the judgment debtor be called upon to pay the amount and in case he failed to do so the property of Muhammad Sultan, the appellant be attached and sold. If the liability of the appellant under the surety bond executed by him pursuant to the interim stay order of the High Court had not terminated o n account of the non‑deposit of the decretal amount within two months prescribed by the order of the High Court dated 18th April 1960, then, even if the respondent thought it necessary to move in execution of the decree by a separate execution application what he prayed for in his last execution application, should have been prayed for by him in his second execution application.

6. The result is that I find myself in agreement with the view of the matter formed by the learned Civil Judge, 1st Class Khairpur, and setting aside the order of the learned District Judge hold that Muhammad Sultan appellant is not liable to pay the decretal amount on behalf' of the judgment‑debtor under the surety bond that he executed in the context of the first execution application under the interim stay order dated 11‑11‑1959. The appeal is accepted with costs.

A. H. Appeal accepted.

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