LAXMICHAND Vs. GOKAL PRASAD

JUDGEMENT

(1.) This is a pltf's appeal against the judgment of the learned Dist J., Jodhpur, holding that the terms of surety bond did not make the surety liable in the execution proceedings. The facts relating to this case are these:

(2.) Laxmichand applt instituted a suit against Rao Raja Gordhansingh for the recovery of Rs. 2,249/- in the Ct of Civil Judge, Jodhpur, & on 23-2-1949 applied for the issue of a warrant of arrest before judgment against the deft under Order 38, Rule 1, C. P. C. On 28-2-1949, a warrant was ordered to be issued accordingly & Gokal Prasad, resp, stood surety & executed a bond as follows: ..(VERNACULAR MATTER DELETED)..

(3.) Shortly after the execution of this bond, the parties appear to have come to terms & accordingly, on 4-4-1949 a consent decree was passed against Gordhansingh. On 14-4-1949, Gokal Prasad surety applied under Order 38, Rule 3 for being discharged from his obligation as a surety. A notice was issued to the deft but service could not be effected upon him. Even a warrant of arrest issued against the deft could not be executed & hence the surety's appln remained undisposed of. In the meanwhile, Laxmichand filed an appln for execution of the decree & on 13-10-1949, a notice was issued to the surety either to produce the judgment-debtor or deposit the amount of the bond. The 14-11-1949 was the date fixed but the judgment-debtor was not present &, accordingly, the surety was directed to deposit Rs. 2,249/-. Against this order, an appeal was filed in the Ct of the learned Dist J., who set aside the order of the trial Ct & held that the surety was not liable as he had undertaken to produce Gordhansingh only in the suit & not in the execution proceedings.