RATNI BAI Vs. GHASI RAM NATHU RAM

JUDGEMENT

(1.) This is an execution first appeal from an order dated the 14 of May, 1923 directing that the respondent surety be discharged.

(2.) In execution of a decree of Musammat Ammi Bai against Nathu Ram, the judgment-debtor, the latter was arrested but on the 26 of February, 1923 on the respondent Sham Behari Lal executing a security bond, the judgment-debtor was discharged. Under the bond Sham Behari Lal undertook that Nathu Bam would apply to the insolvency Court for being adjudicated an insolvent within a month from that date and in case he failed to do so he would be produced in Court, and, further, if he failed to appear in Court then the surety would produce him, when ordered, both in the Court executing the decree and the insolvency Court, and in case he failed to do so, then the surety would be liable to the extent of Rs. 17,000, the decretal amount.

(3.) Within one month of that date an application for being adjudicated an insolvent was presented by Nathu Ram to the insolvency Court but it was not in proper form and was consequently rejected. In the meantime an appeal on the execution side was preferred to the High Court and in this Court an application for stay was made and an ex parte ad interim stay order was granted on the 21 of March, 1923 and one month's time was given to Nathu Ram, judgment-debtor, to furnish security. This time was to expire on the 21 of April, 1923 and till then the proceedings were stayed. On the 9 of April, 1923 the surety, Sham Behari Lal, filed an application before the execution Court in which he alleged that the judgment-debtor was present in Court and prayed that the surety be discharged. Notice was ordered to be issued to the decree-holder as well as to the judgment- debtor. The judgment-debtor apparently did not appear again in person, and it was this application which was finally disposed of by the order under appeal. The learned Subordinate Judge came to the conclusion that inasmuch as the surety did produce the judgment-debtor on the 9 of April, 1923, he fulfilled his undertaking and must, therefore, be discharged from all liability. The decree-holder has appealed from this order.