TRILOK NATH Vs. KESAR SINGH

JUDGEMENT

(1.) THIS is civil miscellaneous first appeal against an order of the Additional District Judge Jammu rejecting the prayer of the decree -holder for taking execution proceedings against the surety Sardar Harbans Singh who is one of the respondents in this court.

(2.) THE facts out of which the present appeal arises may be briefly summarised thus:

(3.) A suit for money was brought by the plaintiff decree -holder against Sardar Kehar Singh, and others and an application for attachment before judgment was filed before the court in the course of which the respondent Harbans Singh stood surety and executed a surety bond in the court of the Additional District Judge Jammu for payment of Rs. 5700/ - in case a decree was passed against the defendants. Subsequently it appears that the decree -holder compromised the case with the principal debtor namely Sardar Kehar Singh and absolved the other defendants. A consent decree for an amount of Rs. 5120/ - was passed by the court on 11 -11 -1958 under which Kehar Singh was to pay the amount by instalments upto the end of June, 1960. As, however, the decretal amount was not paid by the judgment -debtor Kehar Singh, the decree -holder applied to the Court to proceed against the surety on the basis of his surety bond and to realise the amount by attachment and sale of property belonging to S. Harbans Singh surety. The Court below rejected this prayer on, the ground that by virtue of a consent decree having been passed the Surety stood discharged and no execution could be taken against him as his liability had ceased to exist. The Additional District Judge, Jammu apparently applied the principles of Secs. 135 to 139 of the Contract Act to the facts of the case.