SARDARSINGH Vs. KISHORILAL

JUDGEMENT

(1.) This is a second Misc. appeal by the surety for the defendant under Order 38 Rule 2 C. P. C., from the concurrent decisions of the lower Courts, to realise from, him, on the strength of the security bond, the decretal amount payable by the) judgment-debtor respondent No. 2 to the decree-holder respondent No. 1.

(2.) The facts for the most part are common ground and the question is only in regard to the interpretation of the security bond, and the application of Section 145 and Order 38 Rule 2 C. P. C. The special interest of this case is that the decree-holder, having failed by negligence to obtain a bond in terms of the rule, or in the standard form in appendix F (2) to the C. P, C., has to face the problem of establishing that the security bond, as worded, enables him to realise the decretal amount from the surety.

(3.) The relevant facts are the following : Respondent No. 1 brought a suit against respondent No. 2 and took out a warrant of arrest before judgment where it was going to be served, the appellant came forward and executed a bond. A party may not be bound to use the form given in the schedule, but he should bring out in the bond the operative provision of the law that is applicable. Under Order 38 Rule 2 C. P. C. and in the form No. 2 in the Appendix F to the Civil Procedure Code, the operative provision is :