RANCHORNATH Vs. CHAND MOHAMMAD

JUDGEMENT

(1.) THIS is a second appeal by the decree-holder in execution proceedings.

(2.) THE facts giving rise to it are that the appellant got a decree against one Wali Mohammad on 27th of October, 1952, for Rs. 226/11/ -. THE first application for execution of that decree was presented on 24th of March, 1947, but dismissed for want of prosecution on 26th of April. 1947.

(3.) LEARNED counsel for the appellant has urged that the application dated4-ll-1947 is a surety bond since it is called a jamanatna-ma and that the appellant could proceed against the respondent according to the provisions of sec. 145 of the Civil Procedure Code. It is true that sec. 145 of the Civil Procedure Code provides that the decree or order may be executed against ''any person who has become liable as surety for the performance of any decree or any part thereof" to the extent to which he has rendered himself personally liable in the manner provided in the Code for the execution of decrees and such person shall be deemed as a party with in the meaning of sec. 47. Therefore, if the court comes to the conclusion that a certain person has become liable as a surety, then it can certainly proceed against him. as mentioned above. But we have, to see whether the respondent had become liable as surety. The term 'surety' has been defined in sec. 126 of the Indian contract Act which runs as follows - "125. A "contract of guarantee" is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called 'the surety, the person in respect of whose default the guarantee is given is called the "principal debtor", and the person to whom the guarantee is given is called the "creditor". A guarantee may be either oral or written.