1. This is the defendants' second appeal against the judgment and decree of Mr. Kali Charan Agarwal, Civil Judge, Partabgarh.
2. The plaintiff respondents Ram Pher and Ram Adhar filed a suit for recovery of Rs. 35, the price of crops, and Rs. 5 interest thereon, against the appellants Hira Lal and Nageshar. It would appear that Hira Lal appellant had obtained a decree from the Small Cause Court against Ram Pher respondent and in execution of that decree the arhar crop of plots Nos. 111/1 and 113/l situated in village Rupapur was attached. Nageshar appellant was appointed supurdar. He furnished a surety bond also. Ram Adhar, plaintiff-respondent, is the own brother of Ram Pher, and he made an objection to the attachment on the ground that the crop belonged jointly to himself and his brother. This objection was allowed and the attachment was withdrawn in respect of the whole crop. In spite of the order of release, the supurdar Nageshar did not return the property to the plaintiff-respondents. Accordingly the suit was filed for recovery of the price of the crop. In the trial Court objection was taken to the suit on the ground that it ought to have been filed in the Court of Small Causes. The question of limitation was raised and the price of the crop was also disputed. The trial Court held that it had jurisdiction and that the suit was within time and the plaintiffs were entitled to a decree for Rs. 21 against both the defendant-appellants. The defendant-appellants went up in appeal and the question of jurisdiction was not pressed, but the question of limitation was pressed. The appellate Court decided against the appellants and the appeal was dismissed.
3. One of the points urged in second appeal is that the Courts had no jurisdiction to entertain the suit and instead of a suit an application should have been given to the executing Court, that is, the Court of Small Causes, for recovery of the price of the crop. It is contended that 145, Civil P.C., read with Section 47, Civil P.C., is applicable inasmuch as Nageshar supurdar was a surety. This contention has no force. Under Section 145, Civil P.C., the surety is a party for the purposes of proceedings covered by Section 47, Civil P.C., and Section 47 applies only to parties to the suit in which the decree was passed or their representatives. Now, admittedly, the two plaintiffs who owned the attached property jointly were not parties to the suit in which the decree had been passed against Ram Pher only. These persons must therefore be deemed to be strangers to the litigation in which the decree was passed and in these circumstances the bar created by Section 47, Civil P.C., will not arise and the suit of the plaintiffs for the relief they sought was not barred. The suit was rightly entertained in the trial Court.
4. Another point urged in the appeal is that there is nothing on the record to show what the decree-holder Hira Lal, defendant-appellant, had to do with the non-return of the attached property, and in these circumstances the appellant Hira Lal was not at all liable. This contention is sound and must prevail. Nothing whatever was said as to how Hira Lal had made himself liable to the plaintiffs. The mere fact that he was a decree-holder cannot make him responsible for the actions of a supurdar who on his own refuses to comply with the orders of the Court and refuses to hand over the property which is no longer under attachment. No attention to this aspect of the matter seems to have been paid either by the trial Court or by the lower appellate Court, and it is clear that there is no cause of action against Hira Lal appellant. The decree against him therefore is unjustified.
5. Accordingly the decree of the lower Court is modified to this extent that the suit shall stand decreed against Nageshar defendant only for Rs. 21, and proportionate costs. The respondents shall get their costs of the lower appellate Court and this Court from defendant-appellant Nageshar only. The suit stands dismissed and he shall bear his own costs in all the Courts.