WALI MOHAMMAD Vs. GANPAT

JUDGEMENT

(1.) Ganpat and another obtained a money decree from the Court of Small Causes against one Baldeo for Rs. 144 and costs on 3 August 1928. The decree-holders applied on 2 August, 1929 for execution of their decree by-arrest of the judgment-debtor. The judgment-debtor was arrested and brought in Court on 3rd August 1928. He asked for time to pay the decretal amount. The Court ordered him to produce a surety to guarantee his appearance in Court on the various and several dates when his attendance might be required. Wali Mohammad, the applicant, undertook to become a . surety for him and executed a surety bond on 3 August 1928. He stipulated as follows: I, the executant, agree to become surety for , the judgment-debtor and covenant that I shall produce the judgment-debtor in Court on each and every occasion when his attendance is called for by the order of the Court.

(2.) The Court directed that a month's time be allowed to the judgment-debtor to pay up the decretal amount, and the surety was directed to produce the judgment-debtor in Court on 3 September 1929.

(3.) The surety appeared in Court, along with the judgment-debtor on 2nd September 1929, when the judgment-debtor deposited Rs. 15 in part payment of the decree and prayed for further time up to the month of Aghan. The surety applied to the Court to be released from his contract of guarantee and protested that no further time should be allowed to the judgment-debtor. The Court refused the: prayer of the surety. It did not discharge him from his liability, granted time to the judgment-debtor for payment of money up to 21 October 1929 and directed that the surety should be produced , in Court on that date. On 21st. October 1929, the judgment-debtor did not appear in Court, nor did he pay the balance of the decretal amount. The surety appeared and submitted that the judgment-debtor could not be prevailed upon by him to attend the Court. Thereupon the Court directed that the surety should be sent to the civil jail for a period of six months for non-payment of the decretal amount. This order has given rise to the present application for revision. The judgment of the Court below is sketchy and unsatisfactory. The crucial question in the case was whether the contract entered into by Wali Mohammad was one of continuing guarantee or otherwise. In order to determine this question the Court ought to have examined the terms of the contract. The Court ought to have addressed itself to the further question whether the contract came within the definition of a continuing guarantee as given in Section 129, Contract Act. If the Court held that it was a continuing guarantee, a further question remained to be answered as to whether the guarantor could or could not revoke his guarantee as to future transactions by giving the necessary notice to the creditor. These vital questions have been completely ignored and by an arbitrary judgment the surety has been directed to be detained in the civil prison for a period of six months. One cannot withhold the feeling that : the liberty of the King's subject has been trenched upon by the Court below most unreasonably, and, I may add, almost oppressively.