2025 PLP 1156 (MLD)

S.145

Surety, liability of

Scope

Principal's failure to satisfy decree during lifetime

A surety who undertakes liability for a decree remains personally liable even after the death of the judgment debtor

Personal liability of surety survives death of judgment debtor

Legal point which came up for determination before the High Court was as to "whether a surety who has undertaken personal liability under a surety bond for satisfaction of a decree can be discharged from such liability solely on account of the death of the judgment debtor"?

Factual background of the case was that the petitioner filed a constitutional petition on the basis that the original judgment debtor, had passed away, thereby discharging the petitioner (who had furnished a surety bond) from any further liability

The surety bond did not contain any clause absolving the surety in the event of the judgment debtor's death; hence, liability continued

Petitioner's case was that any outstanding decree, after the demise of judgment debtor, could be satisfied from the estate of the deceased judgment debtor

It was an admitted fact that the judgment debtor in his lifetime failed to discharge his liability under the decree, passed for maintenance allowance and dowry articles in favour of respondents Nos. 3 to 6 (wife and minor children)

Held: The terms of surety unambiguously provided that the petitioner undertook to pay amount of Rs. 1,034,000/- in case of failure by the judgment debtor to satisfy the terms of the decree

Section 145 of the Civil Procedure Code, 1908 contemplates that when a person becomes surety for performance of any decree or its part, or restitution of any property taken in execution of decree or payment of any money under an order of the Court in any suit proceedings, the decree can be executed against him to the extent for which the surety has rendered himself personally liable in the manners therein

The death of judgment debtor could not in law release the surety from his obligation when there was no stipulation to that effect in the bond

No case of interference was made out, hence, in circumstances, the constitutional petition was dismissed in limine. Laxman v. Gorakhji AIR 1920 Nagpur 275; Hashmali v. V. Begwant AIR 1922 Nagpur 112 and Zulfiqar Ali and others v. Liaqat Ali and others PLD 2020 Lah. 350 rel. Order Sultan Tanvir Ahmad, J.

Learned counsel for the petitioner has pressed this constitution petition on the sole ground that the judgment debtor namely Muhammad Hanif (the 'judgment debtor') since has passed away, therefore, the petitioner who filed surety bond dated 27.03.2021, stood discharged from his liabilities; that the decree even otherwise can be satisfied from the estate of the deceased- judgment debtor.

2. Heard. The terms of surety dated 27.03.2021 (the 'surety') unambiguously provide that the petitioner undertook to pay amount of Rs. 1,034,000/- in case of failure by the judgment debtor to satisfy the terms of the decree dated 13.12.2018 (the 'decree'). Section 145 of the Code of Civil Procedure-1908 contemplates that when a person becomes surety for performance of any decree or its part, or restitution of any property taken in execution of decree or payment of any money under an order of the Court in any suit proceedings, the decree can be executed against him to the extent for which the surety has rendered himself personally liable in the manners, therein.