NARSINGH MAHTON Vs. NIRPAT SINGH

JUDGEMENT

(1.) This is an appeal from a decision of the District Judge of Patna setting aside an order of the Subordinate Judge in proceedings in execution for the enforcement of a surety bond. The facts are very simple. The decree-holders had brought a suit against the defendants to recover possession of a piece of land and also claimed mesne profits. They obtained a decree for recovery of possession and for such mesne profits as might be found on inquiry and an inquiry was directed. They applied for the appointment of a receiver of the property in dispute and the defendants offered the surety in the case as an alternative to the appointment of a receiver. The contract of surety, the surety bond, is quite explicit in character. The surety gives the property mentioned in the surety bond as security to meet the following contingency as stated in the bond: If, God forbid, the suit is decided against the defendants and a decree for mesne profits is passed in favour of the plaintiffs, the plaintiffs would realize the amount of decree for mesne profits from the property mentioned in this deed.

(2.) Now in order to save the costs of an inquiry the plaintiffs and the defendants compromised their dispute as to the mesne profits and agreed upon a definite sum of Rs. 950. The original amount claimed was some Rs. 3,000. I forgot to mention that the surety bond fixes the liability of the surety at a maximum of about Rs. 500.

(3.) The plaintiffs then took steps under the proper procedure to enforce the surety bond against the surety in the process of execution. The surety objected that by reason of the compromise he was discharged from his liability. The learned District Judge in deciding the matter seemed to think that the proper test as to whether the surety was or was not discharged was whether the surety was prejudiced by the compromise arrived at and his process of reasoning was that whereas the compromise was, as it undoubtedly was, beneficial both to the plaintiffs and the defendants it must therefore be taken as beneficial to the surety and he was not damaged by the compromise and therefore remained liable.