1. The firm Narain Das Ganga Saran of Hathras held a decree against the firm Hari Shankar Moti Ram of Aligarh. The decree was transferred to the Court of the Munsif of Koil, Aligarh, for execution. The Court executing the decree made an order for attachment of the moveable property of the judgment-debtor. The amin attached the property and entrusted the same to Mathura Das, who was appointed a supurdar and executed a tupurdnama on the 30th July 1936. Under the supurdnama he under took to deliver the property whenever and wherever he was called upon by the Court to do so and in the event of his failure to deliver the property to pay its value and the Court could recover the same from his person and property.
2. The firm Mithan Lal Mangal Sen of Delhi also held a decree against the firm Hari Shankar Moti Ram of Aligarh. That decree was also transferred to the Court of the Munsif of Koil, Aligarh, for execution. In execution of that decree also certain moveable property of the judgment-debtor was attached and it was entrusted to Lakshmi Kant, who was also appointed a supurdar, presumably on the same terms.
3. Both the supurdars failed to deliver the property entrusted to them at the time of sale. The decree-holder in each case released the moveable property and proceeded against other property of the judgment-debtor and eventually part satisfaction of the decree was recorded. When the judgment-debtor could not get back his property, which had been released from attachment, he filed, in each case, an application under Sections 145 and 151, Civil P.C., alleging that the decree-holder had got property worth Rs. 9000 attached and that the decree-holder and the supurdars had misappropriated the property and were liable to pay the value of the property. Both the decree-holder and the supurdars denied these allegations as well as their liability. The supurdars alleged that the attached property all along remained with the judgment-debtor.
4. The executing Court held that the decree-holders were not liable in any case; that Mathura Das supurdar never got possession of the property hence he was also not liable; and that Lakshmi Kant had got possession of the property and he was liable to pay Rs. 506, the value of the property as given by the amin.
5. Against the order of the executing Court Hari Shankar, the judgment-debtor, filed Appeal No. 119 of 1945, claiming Rs. 9000 from the decree-holder as well as from the supurdar, Lakshmi Kant. The appeal was dismissed and there is no further appeal. Hari Shankar filed another appeal, No. 107 of 1945, by which he challenged the finding of the executing Court that Mathura Das never got the property and he was not liable. In that appeal the lower appellate Court found that the attached property was actually entrusted to Mathura Das and he was liable to pay its value. Accordingly, the order passed by the executing Court was set aside and the case was remanded to that Court for determination of the value of the property entrusted to. Mathura Das. F.A.F.O. No. 106 of 1946 has been filed by Mathura Das against that order.
6. Lakshmi Kant filed Appeal No. 117 of 1945, disputing his liability. The lower appellate Court agreed with the finding of the executing Court and dismissed his appeal. Second Appeal No. 1184 of 1946 filed by Lakshmi Kant is directed against that order.
7. It may be noted here that in both the cases, which were started on the applications of the judgment-debtor in the two execution cases, the lower appellate Court seems to have treated the proceedings as suits and directed the judgment-debtor to pay court-fee.
8. In the two appeals the same questions of law arise : (1) whether the judgment-debtor was entitled to make an application under Section 145, Civil P.C.; and (2) whether the judgment-debtor having valued his claim at Rs. 9000 the executing Court had jurisdiction to entertain or try the same.
9. The first question has been argued before us at some length. It has been contended on behalf of the appellant that, if the supurdar had misappropriated the property, the remedy of the judgment-debtor was to sue him for recovery of the property or its value and the executing Court had no jurisdiction on an application under Section 145 of the Code to make an order for payment of the value of the property. The learned Counsel for the appellants has relied upon a single Judge ruling of this Court reported in Kallu Khan v. Abdullah Khan A.I.R. (7) 1920 All. 245. In that case the provisions of Section 145 of the Code were not considered at all. Consequently, the decision in that case is of no help in determining the questions raised in these appeals. Section 145, Civil P.C., lays down:
Where any person has become liable as surety -
(a) for the performance of any decree or any part thereof, or
(b) for the restitution of any property taken in execution of a decree, or
(c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceeding consequent thereon,
the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of Section 47. Provided that such notice as the Court in each case thinks sufficient has been given to the surety.
10. In a Full Bench decision of this Court reported in Shakir Hussain v. Chandoo Lal and Ors : AIR1931All567 , Sulaiman Ag. C.J., observed at page 568:
Under Section 145, Civil P.C., where any person has become liable as surety for the restitution of any property taken in execution of a decree, the decree may be executed against him to the extent to which be has rendered himself personally liable. The supurdar by his undertaking becomes liable as a surety for the restitution of the property attached in execution of the decree, and can certainly be proceeded with under this section. This of course does not imply that remedy by a separate suit also does not lie. Section 145 gives the option to proceed against him in execution, but does not compel him to do so as to prohibit a separate suit. Indeed, where by the security a charge has been created on immovable property the remedy to enforce that charge is only by separate suit.
11. At page 671 Mukerji J, pointed:
It appears that when a man comes forward of his own free will and accord to take charge of property attached, and undertakes to make a restitution of the same, he is the person liable as if the decree had been made against him.
12. Therefore, under Clause (b) of Section 145 of the [Code, each of the appellants, to whom the property taken in execution of a decree had been entrusted, became liable as surety for restitution of the 'property; and the decree should be executed against him, as if the decree had been made against him, to the extent to which he had rendered himself personally liable. Under the supurdnama each of the appellants had undertaken to deliver the property whenever and wherever the executing Court ordered him to do so; and he had also undertaken to pay its value If he failed to deliver the property, and in case he failed to pay its value the Court could recover the amount from his person and property. Con. sequently, as surety his liability was the same which he had himself undertaken under the supurdnama. The decrees could be executed against him by seizure of the property, if it was available, or by attachment and sale of his property for recovery of the amount representing the value of the property.
13. In our opinion, the cases are also covered by the provisions of Clause (c) of Section 145 of the Code tin so far as the appellants also rendered them selves liable as surety for the fulfilment of the conditions entered in the supurdnamas executed 'by them. The appointment of the appellants as supurdars would be deemed to have been approved by the Court, when the amin submitted the papers relating to attachment of property including the supurdnama. The appointment was on the conditions mentioned in the supurdnama. These conditions, after the implied approval by the Court, must be deemed to have been imposed by an order of the Court; and that order could, therefore, be executed against the appellants, in order to enforce the liability undertaken by them.
14. Now, the question arises whether the decree or order could be executed at the instance of the judgment-debtor. If any person becomes liable as surety under a decree, as if the decree had been made against him, we see no reason why the person in whose favour the liability had arisen cannot enforce that liability. The property of the judgment-debtor was attached and was released by the decree-holder. The judgment-debtor was entitled to obtain it back and the surety was bound to deliver it back to him. The decree-holder was no longer interested in the property; nor could he obtain it back. So the person entitled to enforce the liability was the judgment-debtor, That liability could be enforced by an application under Section 145 of the Code or by a regular suit. If the judgment-debtor chose the former remedy, there was no legal bar to his doing so.
15. In view of our decision on the first point the second question raised in this appeal does not arise. We may, however, point out that the lower appellate Court having treated the proceedings as suits and the claims having been valued at Rs. 9,000 ill each case, they would have been beyond the pecuniary jurisdiction of the trial Court.
16. The lower appellate Court was, however, wrong in treating the applications as suits and in ordering the judgment-debtor to pay court fee. The order of the lower appellate Court directing the judgment-debtor to pay court-fee in the two cases is, therefore, set aside. With this modification the two appeals are dismissed with costs.