1. This appeal arises out of certain execution proceedings. Mahipal Singh brought a suit for a simple money decree against Raghunandan which was decreed sometime ago. An appeal was presented to the District Judge, and was dismissed. While a second appeal was pending in this Court the decree was put in execution and the judgment-debtor was arrested and brought to the Court of first instance. On his behalf an application has been made that the proceedings should be stay-ad inasmuch as a second appeal was pending in the High Court. The learned Munsiff passed an order that the judgment-debtor should be released provided he deposited in Court a security bond for Rs. 800 as well as furnished sureties for the same. On the 8th April 1921 a security bond signed by two persons Hardeo Singh and Athal Singh was presented which was accepted as sufficient by the Court and the judgment-debtor was released.
2. The second appeal was ultimately dismissed on the 23rd June 1921, and after its dismissal the decree-holder applied to the Court of first instance for execution of the decree against the sureties. On objections being raised by the sureties the application was dismissed as against them. That order was upheld in appeal and the decree-holders have now come up in execution second appeal and urge that the sureties are liable.
3. It is true that the security bond was not quite in conformity with the order of the Court. No objection to it, however, was raised on behalf of the decree-holder and it was accepted as sufficient by the Court. It is now impossible to go behind it and hold that the sureties are liable for anything more than what they had undertaken under this deed.
4. Under this deed they undertook to produce the judgment-debtor in Court on the date the appeal was dismissed, and if they failed to produce him they held themselves liable to pay the decretal amount. It is not disputed that after the dismissal of the appeal no notice was ever sent to the sureties to produce the judgment-debtor in Court. It was practically impossible to know beforehand on what date the appeal would be finally disposed of by the High Court.
5. The decree-holders since then took no stops to call upon the sureties to produce the judgment-debtor in Court. A reasonable construction of the document is that sureties undertook to produce him in Court after the dismissal of the appeal when they were called upon to do so.
6. Before the lower appellate Court the learned vakil for the decree-holders was expressly asked whether he wanted the judgment-debtor to be brought into Court inasmuch as the sureties wore ready to produce him. The reply was that he did not want him as he had become an insolvent, and it was no use having him up in Court. In these circumstances I am unable to hold that the sureties made a default and are liable to pay the decretal amount.
7. It may be that the judgment-debtor got himself released on furnishing security which was really not in strict compliance with the order of the Munsif. It was, however, to some extent the fault of the decree-holders themselves that they did not Examine the security bond at the time. The appeal fails and is dismissed with costs including in this Court fees on the higher scale.