1. One Dwarka Prasad obtained a decree against the respondent Muhammad Sahib Zaman Khan, and it was affirmed in appeal by the District Court on the 10th December 1881. After this he took out execution to recover costs awarded. The respondent applied to stay execution on the ground that he proposed to file an appeal to the High Court.
2. Execution was not, however, stayed and the costs were deposited by the respondent and paid to Dwarka Prasad, and the appellant gave a bond, by which he undertook to refund the amount to the respondent, in the event of the latter succeeding in his appeal to the High Court and of Dwarka Prasad failing to repay to him the amount. The respondent subsequently filed an appeal to the High Court and was successful; and he then applied in the execution department to recover the sum from the appellant, and his application was disallowed by the Court of First Instance, but has been allowed in appeal by the Judge. The appellant appeals to this Court on the ground that the Court executing the decree had no jurisdiction in the matter. I think the plea is valid. Sections 545 and 546, and 253, Civil Procedure Code, have been referred to as enabling the Court to deal with the respondent's application, but they do not appear to be applicable Section 545, Civil Procedure Code, contemplates proceedings to stay execution of decree on security being given by the applicant, and Section 546 is a provision for staying execution when an appeal is pending, but the security given in the case before us was not made under ?circumstances to which the provisions of that section are applicable.
3. Section 253 provides that whenever a person has, before the passing of a decree in an original suit, become liable as surety for the performance of the same, or of any part thereof, the decree may be executed against him to the extent to which he has rendered himself liable, in the same manner as a decree may be executed against a defendant. But this section contemplates that there shall be a suit pending at the time security is given for its performance, and would not seem to apply to a case like this, where no suit can be said to have been pending, as the litigation in the Court of First Instance and Court of appeal had ended, and no second appeal had been instituted in the High Court when security was given.
4. I do not therefore think that Section 253 will apply so as to allow the decree of the High Court to be executed against the surety.
5. I would decree the appeal, and set aside the order of the Court below with costs, and restore the order of the Court of First Instance.
6. I agree.