GHULAM DASTGIR Vs. MOHAMMAD AMIN (SUERTY, OBJECTOR)

JUDGEMENT

(1.) This is a decree, holder's second appeal against a decree of the lower Appellate Court confirming a decision of the Court of first instance allowing the objection of Mohammad Amin, one of the present respondents. The facts of the case can be shortly stated as follows : Ghulam Dastgir, the present appellant, instituted Suit No. 530 of 1933 against the respondent Mohammad Yunis for the recovery of Rs. 1,000 alleged to be due upon a promissory note. He applied for attachment before judgment and certain property of Mohammad Yunis was so attached. Mohammad Yunis desiring to have this property released agreed to furnish security and the respondent Mohammad Amin stood surety to the extent of Rs. 710 and eventually the property attached was released. The suit brought by Ghulam Dastgir was dismissed by the Court of first instance, but on appeal that decision was reversed and the plaintiff's claim decreed. The successful plaintiff thereupon applied to execute his decree to the extent of Rs. 710 against the surety Mohammad Amin. The latter objected and his objections were allowed by both the lower Courts, hence this second appeal. The case for the decree-holder is that after attachment before judgment the respondent, Mohammad Amin executed a surety bond whereby he undertook to satisfy up to Rs. 710 any decree which might be passed against Mohammad Yunis, the judgment-debtor. A decree has been passed against Mohammad Yunis for more than Rs. 710 and accordingly the decree-holder claims that he is entitled to realise Rs. 710 from the surety.

(2.) The case for the surety Mohammad Amin on the other hand is that he merely stood surety for the judgment, debtor in the event of a decree being passed in favour of the appellant decree-holder in the Court of first instance. As that Court dismissed the plaintiff's suit, the surety's liability came to an end and he was under no liability to satisfy any decree which might ultimately be obtained on appeal. The point involved in this case is not free from difficulty and whilst there are a number of conflicting decisions of other High Courts there is no decision of this Court directly bearing upon the point. There can be no question that the respondent Mohammad Amin executed this security bond in consideration of the plaintiff withdrawing the attachment before judgment. Hence it is argued on behalf of the respondents that the security bond was intended to provide only such security as attachment before judgment would have provided. It has been decided by this Court and other Courts that in a case where there is attachment before judgment the attachment ceases once the suit is dismissed by the trial Court : see Ram Chand V/s. Pitam Mal (1888) 10 All. 506 and Balaraju Chettiar V/s. Masila Mani Pillai A.I.R. 1930 Mad. 514. It may well be that the consideration for Mohammad Amin's promise in this ease was the withdrawal by the plaintiff of the attachment before judgment but Mohammad Amin's liability must depend upon the precise nature of his promise. If upon a true construction of this bond he merely promised to stand security in the event of a decree being obtained in the Court of first instance, then clearly he is not liable in the event of the suit being dismissed by the Court of first instance. On the other hand, if he undertook to pay Rs. 710 generally in the event of a decree being obtained, then it would matter little whether such decree was obtained in the Court of first instance or ultimately in the lower Appellate Court. In my judgment the liability on the surety in this case depends upon the construction to be given to the promise contained in the security bond. The bond opens with a recital of the attachment before judgment and of the defendant's application for release of the property so attached on offering security. It is then stated: On defendant's application for security, the Court has asked for a security of Rs. 710. I therefore, while in a sound state of body and mind and in full enjoyment of my five senses stand as surety and give it in writing in case a decree is passed against the defendant, I, the surety, shall deposit in Court Bs. 710 as ordered by the said Court. In case I fail to deposit the said amount in this Court, the Court aforesaid shall have power to realise in any way it likes Rs. 710 on account of security from the person and the property moveable and immoveable.

(3.) In my judgment upon a true construction of this security bond Mohammad Amin undertook to satisfy to the extent of Rs. 710 any decree which might be passed against Mohammad Yunis the judgment-debtor. There is nothing, in my view, to suggest that he only undertook to satisfy wholly or in part a decree which might be passed by the Court of first instance. The words "in case a decree is passed against the defendant" are wide enough to cover the case of a decree passed on appeal in an Appellate Court. The fact that the consideration for this promise was the withdrawal of the attachment before judgment does not in my view necessarily limit Mohammad Amin's undertaking to satisfying any decree which might be passed by the Court of first instance only. In consideration of the withdrawal of the attachment before judgment, it was open to Mohammad Amin to limit his undertaking to the satisfaction of a decree which might be passed by the Court of first instance, but on the other hand it was equally open to him to under, take to satisfy wholly or in part a decree obtained either in the Court of first instance or on appeal. As I have stated the liability of the surety must depend upon the exact nature of his promise and in my view Mohammad Amin in this case did undertake to satisfy to the extent of Rs. 710 any decree which might be obtained against Mohammad Yunis.