P L D 1968 Karachi 42 (PLP)

3. Learned counsel for the respondent has contended before me that the liability of Muhammad Sultan appellant to pay up the decretal amount remained unaffected by the circumstances of the dismissal of the execution application in default and the above mentioned order dated 18‑4‑60 of the High Court. He has further urged that under section 145 of the C. P. C., when any person has become liable as surety for the purposes of any decree or part thereof; the decree or order can be executed against him to the extent to which he has rendered himself personally liable. He has further argued that by executing the surety bond the appellant had given a contract of guarantee in terms of section 126 of the Contract Act and under section 128 of the Contract Act, his liability had become co‑extensive with that of the judgment debtor. The learned counsel also cited before me some judgments in support of his different contentions but it is not necessary to notice the purport of those judgments. The following judgments were cited by the learned counsel for the respondent: (1), Hiralal Ambalal v. Manila) Maganlal A I R 1926 Bom. 565. (2) Reasat Ali Khan v. Mafuz Ali Khan and others A I R 1929 Lab. 770. (3) Keshavlal Harilal v. Pratapsing Mohotalbhai and others A I R 1932 Bom. 168. (4) Madanlal Motilal v. Radhakisan Laxminarain A I R 1935 Nag. 258. (5) Shyamial Ramkrishna Agarwal and another v. Takhatmal Bodhraj and another A I R 1957 Madh. Pr. 98. (6) Lal Muhammad and another v. Emperor A I R 1936 Lah. 470. (7) B. Jang Bahadur Singh and others v. Besdeo Sing and others A I R 1936 All. 549. (8) Hazari Lal and another v. Chaju.Ram and others A I R 1960 Raj. 319.

4. I have carefully examined these judgments but I find that none of them relates to circumstances similar to those with which I am called upon to deal in this appeal. As regards the contention of the learned counsel that the surety bond furnished by the appellant was in the nature of a contract of guarantee, it is inter esting to note that two of the judgments cited by the learned counsel for the respondent himself namely Shyamlal Ramkrishna Agarwal and another v. Takhatmal Bodhraj and another' and Medanlal Motilal v. Radhakisan Laxminarain have expressed the view that the obligation which a surety incurs under the bond which he gives to the Court under the Code of Civil Procedure is excluded from the definition of a contract of guarantee as contained in the Contract Act. To my mind it is quite clear that the bond dated 25‑11‑59 has to .be interpreted in the light of the circumstance in which it was executed. As already pointed out it was executed pursuant to an interim stay order conveyed by the Deputy Registrar to the executing Court by letter dated 13‑11‑59 Exh.

8. If this interim stay order had been confirmed when the stay matter came up befog the High Court on 18‑4‑60 the liability of Muhammad Sultan under the bond executed by him might have remained. But what happened on 18‑4‑60 was that the interim stay order which directed the stay on furnishing of security to the satisfaction of the executing Court, was superseded by a new order of the High Court. This order as already set out was as follows: "If the appellant deposits in Court the decretal amount within two months the execution of the decree to be stayed. In case the appellant does not deposit the security within two months the order of stay will stand vacated." By this order obviously the life of interim stay was extended only to two months at the end of which period it was to be examined whether the decretal amount had been deposited or not; and if it was found that the decretal amount had not been deposited the stay order was to be deemed to have been vacated. The above mentioned order of the High Court clearly means that the security already furnished at the instance of the judgment‑debtor under the interim stay order remained in force only for another two months and that by the end of that period the security furnished by the surety of the judgment‑debtor was to lose all meaning and that unless it was found by the executing Court that the decretal amount itself was deposited in cash by the judgment debtor the penalty that he would incur would be that the stay of execution ordered under the interim stay order dated 11‑11‑59 would cease to be valid. It appears to me that the failure on the part of the judgment‑debtor to deposit the decretal amount within the period of two months of the order dated 18‑4‑60 would in any case have resulted in the vacation of the stay order and within it the discharge of the surety from the liability he had incurred under the superseded interim stay order. But in the present case the additional circumstances apart from the failure of the decree holder to deposit the decretal amount in terms of the order dated 18‑4‑60 of the High Court that arose was, that the decree‑holder himself contributed to the vacation of the stay order by suffering his execution application to be dismissed in default.

5. Furthermore, the circumstance that after the first execution application of the respondent was dismissed in. default, the decree‑holder respondent filed yet another execution applica tion against the judgment‑debtor for recovery of the decretal amount on pain of the decree being executed against him by his arrest and detention in civil prison shows that the respondent himself understood the security bond furnished by the appellant to have lapsed with the dismissal in default of his first application and with the, expiration of the period of two months from the order dated 18‑4‑60 of the High Court. The second application asking for execution by arrest and detention of the judgment‑debtor could not and would not have been made if the security furnished by the appellant under the interim order dated 11‑11‑59 had yet been in force and had already not become extinct on account of dismissal in default of his previous execution application and the ipso facto vacation of stay order on account of the ‑non‑deposit of the decretal amount. It was after the second application of the respondent was dismissed on merits that the respondent filed his 3rd execution application in which he prayed that the judgment debtor be called upon to pay the amount and in case he failed to do so the property of Muhammad Sultan, the appellant be attached and sold. If the liability of the appellant under the surety bond executed by him pursuant to the interim stay order of the High Court had not terminated o n account of the non‑deposit of the decretal amount within two months prescribed by the order of the High Court dated 18th April 1960, then, even if the respondent thought it necessary to move in execution of the decree by a separate execution application what he prayed for in his last execution application, should have been prayed for by him in his second execution application.

6. The result is that I find myself in agreement with the view of the matter formed by the learned Civil Judge, 1st Class Khairpur, and setting aside the order of the learned District Judge hold that Muhammad Sultan appellant is not liable to pay the decretal amount on behalf' of the judgment‑debtor under the surety bond that he executed in the context of the first execution application under the interim stay order dated 11‑11‑1959. The appeal is accepted with costs. A. H. Appeal accepted.