MADHO SAH Vs. SITARAM SAH

JUDGEMENT

(1.) IN this case the respondents first party had instituted a money suit against the respondents second party, claiming a sum of Rs. 3287/- and odd due on a chitha dated the 25th January, 1952. IN that suit the respondents first party attached certain moveables of the defendants before judgment under Order 38, Rule 6, Code of Civil Procedure, but the property was released on the execution of a surety bond by the appellant in favour of the court. The suit was eventually decreed ex parte on the 15th November, 1954, for a total sum of RS. 4326/-and odd, and thereafter the decree was put into execution by the respondents first party as against the respondents second party and also as against the appellant. IN the course of execution certain properties of the appellant were attached and an objection was raised on behalf of the appellant that the execution could not be proceeded against him until the respondents 1st party had exhausted all his remedies against the judgment-debtors and failed to recover the decretal amount. This objection was overruled by the lower appellate court and it was held that the decree-holders were entitled to proceed in execution against the appellant under the terms of the security bond. The relevant portion of the security bond executed by the appellant is as follows:

(2.) ON behalf of the appellant it was submitted by learned counsel that according to the terms of the security bond the decree-holders were not entitled to proceed against the properties of the appellant unless they had exhausted all the remedies against the judgment-debtors and failed to realise the decretal amount. We do not think there is any substance in this argument. Under Section 126 of the Indian Contract Act, a contract of guarantee