P L D 1957 Dacca 499 (PLP)

The facts briefly are that the petitioner Bank filed the said money suit against the opposite parties and others claiming a certain amount on a cash credit account for advances made for running the business of the opposite parties. The suit was contested by defendants opposite parties Nos. 1 to 6, but at the time of hearing they did not appear, and an ex parte decree was passed on 11th January 1951. From that decree two petitions under Order IX, rule 13 of the Code were filed for setting aside the said decree, and those petitions were dismissed by the trial Court. There after the defendants preferred two appeals in the High Court which were disposed of by a Division Bench of this Court on 21st December 1953. It was directed that on the defen dants depositing the amount of the claim and the costs of the Court below, and also the hearing fee of two Gold Mohurs of the High Court or on furnishing security in lieu thereof to the satisfaction of the Court below within a month from date, the appeals would be taken as being allowed without costs, and the order complained of be set aside. In default of the compliance of the above order as to deposit or security within the period as specified, the appeals would be taken as having been dismissed with costs, hearing fee being assessed at two Gold Mohurs. It is the petitioner's case that pursuant to the High Court order a surety bond was executed by the opposite parties, and by the wife of one of them, and also by a third party. This bond was checked by the Sheristadar, and 'accepted by the trial Court. As against that, a petition was filed by the petitioner for the rejection of the said bond, and that was rejected by the order, dated 15th March 1954. From that order this petition in revision has been filed. Mr. Jnanabrata Roy, who has argued the case before us, has contended that the learned Subordinate Judge acted in the exercise of his jurisdiction illegally in accepting the surety bond filed without charging any property as quite in order according to the usual practice of the Court overlook ing the order of the Hon'ble High Court, which directed deposit of the claim with costs in cash or security in lieu thereof. He has based his argument on the interpretation of rule 5, sub‑rule (3) (c) of Order XLI of the Code of Civil 'Procedure, and has contended that under this rule the appropriate form for the execution of the bond is Form No. 2 of Appendix G to the said Code, which provides for hypothe cation of the properties. He has contended that in the present case the bond executed by the opposite parties is a surety bond, and no property has been hypothecated therein, and consequently, the order of the High Court has not strictly been complied with, and, therefore, the bond executed should be rectified. Rule 5, sub‑rule (1) of Order XLI of the Code of Civil Procedure provides that an appeal shall not operate as a stay of proceeding under a decree or order appealed from except so far as the appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the appellate Court may for sufficient cause order stay of execution of such decree. Sub‑rule (3) is to the effect that no order for stay of execution shall be made under sub‑rule (1) unless the Court making it is satisfied‑(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. In connection with the two High Court appeals preferred by the defendants opposite parties two rules were issued on the 18th February 1953, to show cause why on the appellant's furnishing security to the satisfaction of the executing Court all further proceedings of the execution should not be stayed pending the hearing of the appeals preferred to the High Court, and an interim stay was also granted. Admittedly an execution case was pending, and in respect thereof the above order for stay was passed on the present opposite parties to furnish security to the satisfaction of the executing Court. Thus it is clear that the order passed at the time the rules were issued comes within the purview of sub‑rule (3) (c) of A rule 5, Order XLL The appropriate form under that rule is Form 2 of Appendix G. Mr. Saha, appearing for the opposite parties, has tried to distinguish the present case from the operation of the said rules. He has contended that the order passed by the High Court in the appeals does not come within the purview of rules 5 and further the Miscellaneous Cases did not arise out of the execution of ex parte decree, and as such, rule 5 is not applicable. He has submitted that having regard to the High Court order, the bond described as surety bond is the appropriate bond to be executed, and the learned trial Court was right in accepting the same, and no objection to it was raised by the Pleader of the petitioner when shown to him after the Sheristadar had checked the same. His argument, therefore, is that in the present case no relief can be given to the petitioner. The order passed in the appeals by the High Court is not independent of the rules issued, and had in Ray contemplation the two rules would appear from the follow ing passage: "As to the rules, if the petitioner‑appellants comply with the order as to deposit or furnishing security within the period specified, the rules will be made absolute. In default the rules will stand discharged, but the attachment, if any, that might have been made will continue until the order as to security or deposit is complied with, and there after the question of attachment will be in the discretion of the Court below." It is apparent, therefore, that the order passed in the appeals covers the rules also, and is not independent of the rules. Mr. Saha has referred to Indian Forms and Precedents by L. C. Desouza, third edition, at pages 134 to

137. Therein Forms Nos. 112 to 115 are published, and they are headed as security bonds under various provisions of the law although sureties are made liable in some cases with the principles. He has, therefore, submitted that as in the present case no particular form is appropriate, the bond executed is in fact a security bond, and not a surety bond as contended by the petitioner. We are unable to uphold the contention in view of the fact that under rule 5 of Order XLI a specific form has been provided for the execution of bonds, and that form has not been complied with. In these circumstances, the bond executed must be held to be i contravention of the High Court order and must be rectified. Mr. Saha, it may be stated, raised a preliminary objection that this revision petition was not maintainable in view of the fact that a revision petition should have been filed against the order, dated 1st February 1954, when the trial Court accepted the bond and restored the suit to file. His argument is that the order passed on a petition filed after the acceptance of the bond comes nowhere in the picture, and no revision petition lies from the order passed on 15th March 1954, rejecting the same. Here again we are unable to accept the objection raised, for, it seems to us that the petition filed after 1st February 1954, is in fact a continuation of the subject matter which was decided on 1st February 1954, and cannot be held to be unconnected with it. The order passed on 1st February 1954, is a final o der, and a revision petition lies from the order complained of. The result, therefore, is that this rule is made absolute without any order as to costs. It is directed that the bond already furnished by the opposite parties be rectified within a month from the date of receipt of this order by the trial Court to include sufficient properties as security for the due performance of the decree as ordered by the High Court. BADIUZZAMAN, J.‑

I agree. Z. A. S. Rule made absolute.