1. The only substantial point urged in support of this appeal is that, on the terms of the bond, the appellant is not liable for the amount for which he stood surety. The few facts relating to this appeal are these. While Suit No. 73 of 1919 was pending in the court of the First Class Subordinate Judge at Dharwar, the following bond was passed by the appellant :-
In this case, the pleader for the plaintiff applied to the court to the effect that an inventory had been made through a Commissioner appointed therefor relating to the value of the crops standing on the suit lands and in respect of the moveable property in the house, that the defendants were making away with the property in the house, that some had boon already disposed of, that therefore the defendants should he ordered to produce the property before the Court or that in the alternative proper security should be taken from the defendants. Thereupon the Court ordered that the defendants should furnish the security and that in default a receiver should be appointed,
' Therefore, I Iranganda bin Shidramgauda Patil of Nidgundi Taluka Ron, agree with the Court as follows:-The said defendanbs would obey the order of the Court and will produce the things mentioned in the inventory in Court or will pay the price thereof, If she failed to do so, I or my lawful heira or executors will produce Rs. 5,000. To this effect is the surety bond executed on March 29, 1909.
2. The court to which the bond was passed dismissed the plaintiff's suit, but in appeal the plaintiff's claim was allowed, and the court of appeal ultimately passed a decree for possession of the immoveable and moveable properties claimed in the suit with mesne profits,
3. Now in execution of that decree this bond is sought to be enforced against the present appellant, It is urged that this bond must be taken to have been passed under Order XXXVIII, Rule 5, that the liability of the surety is limited only to the order made by the trial Court, to which the bond was passed, and that as that Court made no order against the defendant, for whom he stood surety, his liability under the terms of the bond came to an end. In other words, it is urged that the final order made by the Court of appeal is not the order, in pursuance of which, if the moveables were ordered to be produced by the Court, he would be liable for production by the principal for whom he stood surety.
4. The point is not free from difficulty, and several oases have bean referred to in the course of the argument. But, apart from the decisions, to which I shall presently refer, it seems to from that the case must be decided principally on the terms of the bond. It appears from the bond itself that in the suit the court was prepared to appoint a receiver in respect of the moveables, But it was by giving security that the defendant was allowed to retain possession of the moveables, and the present appellant stood surety for the defendant for production of the moveables which were allowed to remain iq the possession of the defendant.
5. The agreement is in these terms:-
The said defendants would obey the order of the Court and will produce the things mentioned in the inventory in Court or will pay the price thereof. If she failed to do so, I or my lawful heirs or executors will produce Rs. 5,000.
6. There is nothing in the terms of this bond to limit the operation of the bond to the order which that court would make; It is an undertaking given in general terms that the defendants would obey the order of the Court and would produce the things mentioned in the inventory in Court or will pay the price thereof; and in the event of the defendants failing to produce them, if so required, the surety would be liable to the extent of Rs. 5,000. In the absence of any clear indication in the bond that only that Court, to which the bond was passed, was meant, and not the Court of appeal, which might ultimately make the order binding on the parties for the production of the moveables, the surety cannot escape his liability under the bond. It may be possible for the surety to limit his liability by using proper language to that effect. But, in the absence of any language so limiting his liability, it seems to me to be fait to hold that he stood surety on behalf of the defendant that moveables would be produced by her which were mentioned in the inventory, whether the court requiring her to produce the ornaments ultimately was that very Court or was acting in pursuance of the order made by a superior Court. That circumstance would not and should not make any difference to the liability of the surety.
7. This reasoning derives great support from the observations of their Lordships of the Privy Council in Raghubar Singh v. Jai Indar Bahadur Singh (1919) 22 Bom. L.R. 521 It appears that in that case the bond in question was passed to the Judicial Commissioner's Court, which was the Court of first appeal in that case, and the liability that was sought to be enforced was the liability which was imposed by the decree of the Privy Council in that very case, the Judicial Commissioner's Court having dismissed the appeal, during the pendency of which the bond in question was passed. Then the question as to the liability of the surety under the bond again went up to the Privy Council and in dealing with the point, which was raised by the surety, their Lordships observed as follows (p. 527):-
The second point, and that which had been principally fought throughout, is whether the appellants became sureties for the restitution of the mesne profits according to the ultimate decision of the Courts, or whether they were only be be liable in the event of the first Court, that of the Judicial Commissioner, deciding against them, and not liable if that court decided in their favour, though the decree was finally reversed in the Privy Council,
'Upon this point their Lordships are in agreement with the Subordinate Judge and the Court of the Judicial Commissioner, the other construction would give a strange result. According to it if the Court of the Judicial Commissioner had reversed the decree of the Subordinate Judge, but wrongly reversed it and been itself corrected on final appeal, so that the widow was really entitled to possession and the mesne profits, still the Court of the Judicial Commissioner having decided against her, the sureties would have had to pay to the defendant, who had no title, the amount of the mesne profits from the date of the original decision to that of the intermediate Court of Appeal.
' It would be strange indeed if the language of the instrument had been such as to create a kind of wagering contract of this nature; but there is really no difficulty in the language of the instrument.
8. Then their Lordships refer to the terms of the bond and proceed as follows (pp. 527, 528) :-
By this instrument) the obligors make themselves liable to the amount of one lac as security for any order that might be passed by the Court of the Judicial Commissioner, not the first order but any order; and the ultimate orders of the Judicial Commissioner were that of March 4th 1907, decreeing that the claim of the widow be dismissed as to all but a few villages, and that of November 20, 1916, by which, inter alia, the assessment of the Subordinate Judge finding that the mesne profits amounted to more than three lacs of rupees was affirmed. On this point, therefore, the appellants fail.
9. Following that reasoning it may be, said here that ultimately the Court which directed the defendant to produce the moveables in question was the very Court to which this bond was passed. No doubt it did so in pursuance of the order made by the Court of appeal which is finally binding on the parties,
10. As against this view, reliance is placed upon two cases: Shek Suleman v. Shivrvm Bhikaji I.L.R. (1887) 12 Bom. 71 and Subbarama Aiyar v. Subba Aiyar : (1924)47MLJ523 . Both the cases are distinguishable on the terms of the bonds in those cased, I recognise that the ratio decidendi in the case of Shek suleman v. Shivram Bhikaji to a certain extent supports the contention of the appellant. But I am unable to reconcile that reasoning with the reasoning in the Privy Council case to which I have referred. And, it may be added that in that case the terms of the bond were specific enough to show that it was the very Court to which the bond was passed that was meant and not any other Court. So, in the Madras case also, it seems that, on the terms of the bond, the case is distinguishable from the present case. On the reading of the bond in that case, the learned Judges were of opinion that 'the bond which really took the place of the attachment before judgment was meant to give security only for the purpose of enabling the first Court to execute its decree, in case it passed a decree.' As that Court did not pass a decree at all but dismissed the suit, the learned Judges held that the first Court was right in holding that the bond ceased to have further effect.
11. In the present case, we are unable to hold that that is the true meaning of the bond. It seems to us that the terms of the bond are such as would fairly invite the application of the reasoning adopted by their Lordships of the Privy Council in Raghubar Singh v. Jai Indar Bahadur Singh (1919) 21 Bom L.R. 521
12. I would, therefore, dismiss the appeal with costs to respondent No. 1. Respondent No. 2, who is in the same interest as the appellant, should bear his own costs.
1. I agree.