Norman Macleod, Kt., C.J.
1. This is an application under Section 25 of the Provincial Small Cause Courts Act asking us to set aside an order made by the First Class Subordinate Judge of Surat on June 30, 1923, in the following circumstances. One Bhukhandas Nagardas had obtained a decree against one Merwanji Rustomji Mody for Rs. 420 and costs. The plaintiff applied for execution of the decree against the defendant by his arrest. Notice was issued upon the judgment-debtor calling upon him to show cause why he should not be arrested in execution of the decree against him. As the judgment-debtor did not appeal to show cause, the Court, on January 19, 1923, made an order for his arrest. In pursuance of the warrant the judgment-debtor was arrested and brought before the Subordinate Judge. On February 27, 1923, an order was made on an application by the judgment-debtor under Section 55(4) of the Civil Procedure Code that he wanted a month's time to make an application to be declared an insolvent. The Judge made an order that on the judgment, debtor giving security for Rs. 450 he should be released. The present petitioner then came forward and passed a bond in the following terms:--
I Makan Mavji residing at Katargaon with my will and for me and my heirs and assigns make a contract with the Court that the defendant Merwanji Rustomji will appear in Court when called upon in any proceeding upon the application or upon the decree in execution and that he will give an application within the abovementioned period and if he does not appear or does not make an application, I, my heirs and assigns, bind ourselves to give Rs. 500 by its order to the Court.
2. Accordingly the judgment-debtor was released. But he failed to apply to be declared an insolvent within a month from the date of the order. The Court then on its own motion made an order on the original Darkhast to the following effect:--
Insolvency application not presented, re-issue warrant of arrest.
3. The judgment-creditor had notice of this order, so on April 4, 1923, he made an application to the Court to the effect that the application for insolvency not having been given in time, the surety had become liable, and prayed that the warrant should not be issued against the judgment-debtor, but that the surety should be called upon to pay the amount of the decree. Before any order could be passed on that application the judgment-debtor died on May 17, 1928. Accordingly the judgment-creditor continued his application against the surety. The Court granted the application and directed execution against the surety to issue for the sum remaining due under the decree.
4. Whether that decision was right depends upon the proper construction to be put on Section 55(4) of the Civil Procedure Code. When a judgment-debtor is brought before the Court on arrest, he may express his intention to apply to be declared an insolvent and if he does so, he is asked to furnish security to the satisfaction of the Court, first, that he will within one month so apply; secondly, that he will appear when called upon, in any proceeding upon the application, that is to say, the application for insolvency; and thirdly, that he will appear when called upon in the decree, in execution of which he was arrested. If he furnishes security, the Court shall then release him from arrest. If he fails to apply to be declared and insolvent, or fails at any time to appear either on the application for insolvency, or upon any decree in execution, the Court may direct the security to be realized or may commit the prisoner to the civil prison in execution of the decree. I do not think this moans that the Court may proceed both against the surety and also against the debtor. Obviously if the surety is proceeded against and the amount is recovered from him under the conditions of the bond, then the judgment-debtor cannot be committed to jail in execution, and also if the judgment-debtor is committed to the civil prison, the state of affairs is just the same as if the surety had never come forward, so that the Court cannot concurrently proceed against the surety.
5. Now in this case the surety became liable as soon as the judgment-debtor failed to apply to be declared an insolvent within the month allowed to him The Court of its own motion issued the warrant of arrest. Clearly if that warrant had been executed and the judgment-debtor had been committed to the civil prison, then with regard to that condition in the bond, the surety would have been released. But it is contended that the issue of warrant is not sufficient by itself to bar the Court from proceeding against the surety, if the warrant is unfruitful, and that seems to me to be the right construction of the section. It is only when the judgment-debtor has been brought back before the Court, so that the Court can commit him to the civil prison, that the surety is released. It may often happen that although the condition of the bond has not been fulfilled, and the debtor has absconded, still the Court may endeavour to bring him back, so that he may be committed to the civil prison. But if the arrest cannot bbe effected, then as the Court has not succeeded in the first alternative open to it, it is still possible to the Court to resort to the second alternative and proceed against the surety. The fact that the judgment-debtor died would protect the surety against any failure with regard to that condition in the bond which made him liable for the appearance of the debtor in Court or in any proceeding in insolvency. But the judgment-debtor's death after the first condition had failed, namely the undertaking to apply to the Court to be declared an insolvent, cannot possibly affect the surety's liability with regard to that condition.
6. We think, therefore, that the order of the lower Court is right and the rule must be discharged with costs.
7. I agree.