AJITULLA SARKAR Vs. NANDOOR MAHAMMAD

JUDGEMENT

(1.) THIS is an appeal arising out of certain execution proceedings, and the question is between the decree-holder on the one side and the sureties Bharat Chandra Datta and Nandoor Mahammad on the other. The judgment-debtor has no further interest in the proceedings. Some standing crops were attached as the property of the judgment-debtor To those crops a claim was put in by certain persons and for them the present respondents stood sureties. The surety bond provided that the present respondents would, if the claim to the crops were not allowed, pay a sum of Rs. 50 to the decree-holder and that, if they did not pay amicably, the decree-holder was to be entitled to realize the amount by attachment and sale of their moveable and immoveable properties. On this bond being passed the claimants were allowed to cut the crops, When the claimant s case came on, the claim was dismissed and the execution case against the judgment-debtor was also struck out. In execution against the present respondents the Munsif allowed the decree-holder s application, but, on appeal, the learned District Judge reversed that decision. He relied on two cases, Lalji Sahoy v. Odoya Sunderi Mitra 14 C. 757 : 7 Ind. Dec (N.S.) 502 and Nirus Narayan v. Peari Dai Debi 21 Ind. Cas 612. The bonds in those cases, however, were different from the bond before us. Those were cases of an undertaking by the sureties to produce the judgment-debtor in the course of certain execution proceedings. It was held that when those execution proceedings came to an end there was no further obligation under the bond to produce the judgment-debtor, there being no proceeding in which he could be brought before the Court. That is not the case here. The claimants were allowed to remove the crops on the express undertaking that in case their claim was found to be baseless the sureties would pay the decree-holder Rs. 50. The mere fact that the execution case against the judgment-debtor was dismissed after the claim was dismissed does not, in my opinion, affect the question of the liability under the bond. Had there been a suit under the bond there is no doubt that the sureties could have been made liable. The present Code, however, provides for realization of the amount due under the bond by execution. I would, therefore, decree the appeal, reverse the order of the learned District Judge and restore that of the Munsif with costs in this Court and in the lower Appellate Court. I assess the hearing fee at one gold mohur. Smither, J.

(2.) I agree.