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Execution Second Appeal No. 15 of 1954 decided on 13th January, 1955 from the decree of Ch. Muhammad Din, District Judge, Gujranwala, dated the 21st December, 1953, affirming , that of Ch. Hamid Ullah Khan, Civil Judge, 1st Class, Gujranwala, dated the 19th May, 1952.

Civil Procedure Code (V of 7908), S. 47‑Mesne profits Realisation of‑Such profts not being awarded by decree (which seas for possession pure and simple), but judgment‑debtor fur nishing security for their payment in order to get stay of execu tion in appeal‑Realisable in execution proceedings and not by a separate suit.

The judgment‑debtor in order to get from the Appellate Court an order for stay of execution of a decree for posses sion of land against him, furnished security for payment of mesne profits of the land in case of failure of his appeal On the appeal being dismissed the decree‑holder applied for realisation of the mesne profits in the execution Court, to which application, the judgment‑debtor raised the objection that the decree‑holder could only proceed by a separate suit and not in proceedings in execution on the ground that reali sation of mesne profits was not a question relating to the execution, discharge or satisfaction of the decree.

Held, that this was a matter relating to the execution of decree and that the Court had also inherent power to enforce the condition of payment of mesne profits by proceedings in execution of the decree for possession.

Sadasiva Pillai v. Ramalinga Pillai 2 I A 219, Ram Singh v. Imperial Bank of India A I R 1928 Lab. 802, Raja Raghubar Singh v. Jai Indra Bahadur Singh AIR 1919 P C 55 and Kunwar Rohani Ramandhwaj Prasad Singh v. Thakur Har Prasad Singh A I R 1943 P C 189, ref.

Jawala Singh v. Sundar Singh .A I R 1927 Lab. 346, dis tinguished.

Ghulam Hyder Shah, for Appellant.

Zia Ullah, for Respondent No. 1.

‑Mst. Sakina Begum respondent obtained a decree for possession of land against Hadayat Ali appellant and others on 15th of December 1945. A first appeal against this decree filed in the Court of the District judge failed and a second appeal was filed in .the High Court. During the pendency of the appeal the judgment‑debtors applied for stay of execution of the decree for possession. The High Court by its order dated the 12th of April 1947 directed that execution be suspended on the judgment‑debtor's furnishing a security for payment of mesne profits in respect of the land in dispute if the appeal failed. Mehtab, who is cited in this appeal as a respondent, stood surety by executing a surety bond dated the 26th of May 1947 by which he undertook to pay such amount in respect of mesne profits as may be assessed by the executing Court in case the judgment‑debtors themselves fail to make payment. The appeal to the High Court was dismissed and the decree‑holder put in an application on the 24th of June 1948 in the executing Court for the award of the mesne profits against the judgment‑dedtors as well as the surety. This application was opposed but was granted and an appeal to the District judge was dismissed. This is a second appeal filed by Hadayat Ali judgment‑debtor impeaching the order passed against him.

The only question raised is that the remedy of the decree holder is by a separate suit and that the judgment‑debtor cannot be proceeded against for the recovery of the mesne profits in execution. It is urged that the decree itself does not make any provision for realisation of mesne profits being a decree for possession pure and simple and the matter, therefore, is not one relating to discharge, execution or satisfac tion of decree. On behalf of the decree‑holder reliance is placed on Jawala Singh v. Sunder Singh (A I R 1927 Lab. 346) wherein it Was held with reference to section 145 of the Code of Civil Procedure and the inherent powers of the Court that mesne profits could, when security had been furnished for their payment, be realised in execution of the decree.

I am of the view that section. 145 would not apply to the present case because the appellant before me is the judgment‑debtor himself and not the surety.

Section 145 runs :‑

"Enforcement of liability of surety.‑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 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."

This section is not happily worded, but it is clear that the person who can be proceeded against under section 145 is one who stands surety for the performance of a decree, for the restitution of any property taken in execution of decree, for the payment of any money, or for the fulfilment of any condition imposed on any person. It would cover the case of Mehtab Din and would justify the proceedings against him. The appeal before me, however, is not by Mehtab Din but by the judgment‑debtor. The word "surety" according to its ordinary meaning as well as according to section 126 of the Contract Act, is a person who gives a guarantee for the performance of the promise or for the discharge of the liability, of a third person in case of his default. It does not apply to the person for the discharge of whose liability guarantee is furnished. I would, therefore, hold that section 145 does not apply.

Although section 145 does not apply it should be clear that in cases covered by section 145 the person for whom an other stands surety can also be proceeded against in execution. It would be illogical to assume, in the absence of some clear indi cation to the contrary, that whereas the principal cannot be proceeded against in execution, the surety can be so proceeded against. I am of the opinion that so far as the original judgment debtor is concerned, there was no need to make a separate provision to this effect. So far as clauses (a) and (b) of section 145 are concerned it would be quire obvious that the judgment‑debtor could be proceeded against in execution. It is only with respect to clause (c) that the question may arise as to whether a person who is bound to pay money or on whom a condition has been imposed and who has given security for the performance of his obligation can be proceeded against without recourse to a separate suit. A person bound to pay money must be so bound by virtue of an order of Court. That at least is the kind of payment that is referred to in clause (c). So far as the imposition is concerned, it appears to me that whenever a Court has authority to impose a condition upon a person, it has authority also to enforce the performance of that condition in the same proceedings. Such a power is necessarily implied, for, in order to give full and effective authority to the Court to impose conditions, it is essential that a power for the enforcement of the conditions should also exist.

There is another way of looking at the matter. If execu tion of a decree is stayed on the hasis of an undertaking given by the judgment‑debtor, would not the enforcement of that undertaking be a matter relating to execution of the decree I may refer to a judgment of their Lordships of the Privy Council in Sadasiva Pillai v. Ramalinga Pillai (2 I A 219). In that case a decree had been passed granting mesne profits up to the date of the suit. There was an appeal against the decree and during the pendency of the appeal the judgment debtor applied for stay of execution. The execution was stayed on his executing a bond for payment of mesne profits after the date of the suit up to the date of the decision of the appeal. After the appeals against the decree had been dismissed the decree‑holder applied for award of mesne profits and the question then arose whether mesne profits could be realised in execution of the decree. At the time section 11 (now section 47) of the C. P. C. contained a provision that the amount of mesne profits would be ascer tained by the execution Court, but it had been held by the various High Courts in India that this provision related only to the determination of the mesne profits that were awarded by the decree. Their Lordships of the Privy Council accepted this interpretation but in spite of it their Lordships held that on account of the undertaking which the judgment‑debtor had given for the payment of mesne profits the matter did become one relating to the execution of the decree. I would refer to the following paragraph in their Lordships' judgment :‑--

"Upon the whole, their Lordships are of opinion that the Respondent, by the proceedings in question, did come under an obligation to account in this suit for the subsequent mesne profits of the Appellant's land, which was capable of being enforced by proceedings in execution, notwithstand ing the construction of the 11th section of the Act of 1861, which now prevails in Madras. They conceive that this liability made the accounting "a question relating to the execution of the decree," within the meaning of the latter clause of the section. But even if it did not, they think that upon the ordinary principles of estoppel the Respondent cannot now be heard to say that the mesne profits in " question are not payable under the decree. Nor do they feel pressed by the observations made by Mr. Justice Markby in the case reported in the 4 Beng. L. R., A. C., J. p. 113."

Although their Lordships have put the case on an alternative ground also, their Lordships do accept the position that on account of the undertaking which the judgment‑debtor gave, the realisation of the mesne profits became a matter relating to the execution, discharge or satisfaction of decree. I would hold that the decree‑holder can in this case succeed on both grounds. This has become a matter relating to the execution A of decree and the Court would also have inherent powers to enforce a condition which is imposed.

I would here clarify the position in a case‑ where a suit has beep dismissed and yet during the course of the proceedings in that suit an order imposing a condition has been passed with respect to a party to the suit and on account of the result of that suit that condition becomes enforceable. I may refer to a case where a person applies for the issue of an injunction. For instance, a plaintiff applies for an injunction restraining the defendant from executing a decree for posses sion which the defendant has obtained and he is granted an injunction on his undertaking to pay the mesne profits of the land in dispute. His suit ultimately falls. It may be asked what is the decree to the execution of which this matter relates I would reply by saying that it is an execution of the order passed by the Court imposing the condition and that order has by itself become enforceable on the dismissal of the suit.

In support of the view that there is inherent power in the Court I may also cite Ram Singh v. Imperial Bank of India (A I R 1928 Lah 802) where Dalip Singh J. held that in cases where a bond is executed under an order of a Court, which conditionally stays execution Court would have inherent power to enforce the bond.

In the case before me it may be objected that there is no undertaking at all by the judgment‑debtor who is the appellant before me. The bond is executed only by the surety. It only mentions the fact that if the judgment‑debtor does not pay, the surety would be liable to pay. I am of the opinion that the liability of the judgment‑debtor himself is involved in the order passed by the Court granting his application. When he was called upon to furnish security, it implied that he would himself be liable. When he furnished the security he accepted the liability. The order of the High Court became operative on the dismissal of the appeal and we can look at the present proceedings as if they related either to the execution of the original decree of possession or to the execution of the order of the High Court imposing this condition upon the judgment‑debtor which order became enforceable as soon as the appeal was dismissed.

There is yet another reason why the inherent jurisdiction of the Court can be invoked in the present case. The surety bond is not in favour of any person. The surety simply agrees that he will deposit in Court the amount of mesne profits if the judgment‑debtor fails to pay. Their Lordships of the Privy Council pointed out in Raja Raghubar Singh v. Jai lndra Bahadur Singh (A I R 1919 P C 55) that the Court is not a juristic person and that in cases where a bond is given not in favour of the decree‑holder or any named person but in favour of Court, no suit can be filed. The only remedy therefore of the decree‑holder for enforcing the bond is by applying to the Court for realisation of the money in. execu tion. The same view was held in Kunwar Rohani Ramandhwaj Prasad Singh v. Thakur Har Parsad Singh (A I R 1943 P C 189). These cases relate to the surety and not to the judgment -debtor. But if the surety can only be proceeded against in execution, it is obvious that on the principle stated by their Lordships the judgment‑debtor himself can only be so proceeded against. Either it should be held, what I am not prepared to hold, that the judgment‑debtor is not liable at all or he has to be proceeded against in execution, for no suit is possible These cases also support the proposition that there may be inherent jurisdiction in a Court to enforce the bond. I may clarify that in every case in which a bond is executed under the orders of a Court it is not necessary that it should be enforceable in execution proceedings. That would depend upon the interpretation of the order of Court. What I have held is that there is power in the Court to order the execution of a bond which it would be able to enforce in execution, not that the Court has nor power to order the execution of a bond which may be enforced by a separate suit. If the intention of the Court itself be that a bond would only be enforced by means of a separate suit, a separate suit may be the only remedy. There is no force in this appeal which is dismissed with costs.

A. H. Appeal dismissed.

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