HAJI AHMED KARIM Vs. MARUTI RAVJI BHONGLE

JUDGEMENT

(1.) The defendant No. 2 appellant became surety for defendant No. 1 judgment-debtor, to the plaintiff-respondent Secree-holder. The plaintiff and defendant No. 1 compromised the suit, the decree-holder sought to enforce the decree against the surety, who resisted on the ground that the decree was not obtained after contest, and he was, therefore, released. The trial Court upheld the plea, the lower appellate Court rejected it, the surety appeals.

(2.) It is argued for the appellant that the terms of the surety-bond particularly the words that the surety "will fulfil the terms of the decree or order that may be passed in the said suit by the Kopergaon Court or by the appellate Court or by the High Court and binding against the said defendant," implicitly, if not explicitly, exclude a compromise and postulate a contest. Further, the judgment-debtor in his written statement had set up a payment of Rs. 1,400, which he did not seek to prove in the compromise. There is, therefore, a variation from the terms of the surety-bond, which, whether prejudicial or not, would entitle the surety to be discharged.

(3.) For the respondent-decree-holder it is contended that the bond including these terms did not exclude a compromise. The appellant failed to go into the witness-box, or prove collusion, which he had set up, and on the contrary, according to the respondent, had taken away crops, which were the subject of an interim injunction, and the surety is not, therefore, discharged.