ABDUL ALI Vs. RUPCHAND

JUDGEMENT

(1.) THIS application in revision challenges the order of the learned Judge, Small Cause Court, Hyderabad, dated 16 -10 -1951, overruling certain objections raised by the petitioner in respect of the execution of decree.

(2.) THE petitioner executed a surety bond on 19th February 1951 in pursuance of an order of the High Court granting stay of execution pending a revision application preferred by the judgment -debtor on his furnishing security. The security bond recited :

(3.) IT was in the first place argued by the learned Advocate for the petitioner that a stay order absolute and unqualified in terms cannot be regarded to be partial in its operation. Therefore, as long as the stay order continued, no execution can be levied against the surety. No law or authority has been quoted in support of this contention. I, no doubt, agree with the contention to this extent that a stay order absolute in terms operates as stay against all persons who are parties to the decree. But it is clear from the terms of the decree itself that there was no decree against the surety. The surety becomes liable under the terms of his bond, and on that account execution is taken out against him under the provisions of S. 145, Civil P.C., and not because he is or has become a party to the decree. No doubt, the decree is executed against the surety under S. 145 of the Code as though he were a party to the suit, and the principal debtor but that does not make him a virtual party to the decree itself. The language used in S. 145 of the Code points to the same conclusion because it says that surety shall be deemed to be a party within the meaning of S. 47 only for a limited purpose, namely for the purpose of appeal. This view is fortified by the observations of their Lordships of the Madras High Court in the case of - -'Ramanathan Pillai v. M. Doraiswami Ayyangar', 55 Ind Cas 363 (Mad), to the effect that the surety is not a party to the suit or to the decree made therein nor does he become party to the execution proceedings until application is made for an order against him. He is not a party to the suit within S. 47, and S. 145 only makes him a party for the limited purpose of appeal. In the case of - -'Raj Rag(sic) Singh v. Jai Indra Bahadur Singh',, 46 (sic) App 228 (PC), their Lordships of the Privy Council remarked that Ss. 47 and 144 apply only to the parties or the legal representative of the original parties and do not apply to sureties. For these reasons, I am of the opinion that if an order staying the execution of the decree is granted by a court, it would be restricted in its operation to the actual parties to the decree, and it will not deter the decree -holder from seeking execution against the surety.