P L D 2014 Lahore 429 (PLP)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this constitutional petition, the petitioner has assailed the order dated 28-6-2012 passed by respondent No.3.

2. The petitioner is the father of judgment debtor the respondent No.2, the respondent No.1 secured a decree for recovery of maintenance allowance against respondent No.2, the decree was not paid and ultimately respondent No.1 filed execution of decree. The respondent No.2 was arrested and was sent to civil prison. On 29-5-2009 the judgment debtor appeared in custody and requested that he is ready to pay the decretal amount in installments. The learned executing Court on 29-5-2009 accepted the judgment debtor's offer and directed that judgment debtor will pay the decree in installment of Rs.5,000 per month each and for remaining amount he will submit the surety bond of Rs.1,00,

000. The petitioner being father of judgment debtor submitted surety bond on behalf of respondent No.2. The judgment debtor after making certain payments again defaulted in the payment of decretal amount. The learned executing Court attached the immovable property of petitioner/surety and ordered to auction the same. The petitioner deposit Rs.1,00,000 and one installment of Rs.5,000 to the Court auctioneer and prayed for abandon the Court auction but he refused to do so. The learned executing Court vide impugned order held that in terms of surety bond the petitioner is liable to pay the entire decretal amount and refused to set aside the auction of petitioner's immovable property, hence, the present petition.

3. Learned counsel for petitioner submits that petitioner has submitted surety bond for securing the presence of judgment debtor in Court and in case of failure of the judgment debtor to appear before the Court he has to pay Rs.1,00,

000. The surety has paid Rs.1,05,000 and as such his surety bond stand discharged, the petitioner's immovable property could not be auctioned for recovering the balance decretal amount. Learned counsel submits that no decree has been passed against the petitioner, the petitioner is not a judgment debtor, and is only a surety and his surety is restricted to the extent of Rs.1,00,000 only. Learned counsel has relied on Mst. Maqsooda Mai v. Bukhat Ali and another (2007 MLD 1264).

4. Learned counsel for respondents submits that petitioner's property was rightly auctioned by the learned executing Court in terms of his surety bond. He further submits that the judgment debtor is real son of petitioner and as such the petitioner 's bound to pay the decretal amount. He has relied on Amanullah Khan v. District Judge and 3 others (2012 CLC 679) and Saleemullah v. Abadat Ali Malik and others (2000 CLC 1648).

5. Heard. Record perused.

6. The furnishing of surety bond on behalf of petitioner is not denied. The decree has been passed against respondent No.2 for payment of maintenance allowance. The respondent No.2 is the son of petitioner and was arrested in execution of a decree and was sent to civil prison. He remained in civil prison for 5 months when the learned executing court on 29-5-2009 passed the following order:--

7. The judgment debtor in compliance of order dated 29-5-2009 arranged the surety of petitioner and the learned executing court accepted the surety bond. The petitioner no doubt is father of judgment debtor but admittedly he is not a judgment debtor nor he was a party to the suit.

8. The petitioner submitted a surety bond declaring that:--

9. The learned executing court accepted the said surety bond and respondent No.2 was released from the civil prison.

10. It is an admitted fact that respondent No.2/judgment debtor failed to appear before the executing court, the executing court attached the property of petitioner and ordered to auction the same. The petitioner deposited Rs.1,05,000 to the court auctioneer and stated that he has fulfilled his obligation under the surety bond and as such his property could not be auctioned. Under section 128 of the Contract Act, the liability of surety is co-extensive with a principal debtor. Unless it is otherwise provided by the contract. Now it has to be seen what contract of surety provides. The contract of surety specifically provided that in case the judgment debtor failed to appear before the Court the surety will deposit Rs.1,00,000 with the Government treasury. The surety has never undertaken or assured through the surety bond that he will pay the decretal amount in case of failure of the judgment debtor to pay, hence, the contract of surety specifically provides that maximum surety under the contract is Rs.1,00,

000. The learned trial Court has fallen in error while holding that surety has to pay the entire decretal amount. The order of learned trial Court dated 29-5-2009 does not find mention that the judgment debtor will arrange a surety for the payment of the entire decretal amount. The order is that judgment debtor is ready to pay Rs.5,000 per month and for the remaining amount he will arrange a surety bond, the order of learned executing Court shows that the judgment debtor was to provide a surety amounting to Rs.1,00,000 for the balance decretal amount. The judgment relied upon by the respondents Saleem Ullah v. Abadat Ali Malik and others (2000 CLC 1648) has different facts. In that case the surety has made the statement before 'Panchait" that the surety will pay a lump sum amount of Rs.1,60,000 the total decretal amount up to certain date and in the other judgment relied upon by the respondents Amanullah Khan v. District Judge and 3 others (2012 CLC 679). The surety was for the payment of entire decretal amount, whereas in the case in hand the surety is restricted to the extent of Rs.1,00,000 which the petitioner has paid to the court auctioneer and this fact is not denied by the respondents. In these circumstances, the impugned order is set aside and the order for auctioning the immovable property of petitioner is declared without lawful authority. The petition is allowed in the above said terms. AG/M-202/L Petition allowed.