1. The question in dispute relates to execution sought by the decree-holder against a surety who became a surety under the provisions of Section 55(4), Civil P.C. On 29th March 1927 the judgment-debtor Bindraban was produced before the execution Court under arrest and he was released on Narain Das standing surety for him according to statute (1) that the judgment-debtor will apply to the insolvency Court within one month of the date of release and (2) that the judgment-debtor will appear when called upon to do so.
2. The lower appellate Court has suggested that the vernacular security bond is not in these terms, but that is not a point for consideration because the surety ought to have known the law and what he contracted for under the law. Application for insolvency was not made within one month and so there certainly was default. It was represented on behalf of the respondent surety that the Court had extended time for making this application. There was no such extension of time; it is true that the judgment debtor appealed from the decree and execution was stayed from time to time, but this order of the appellate Court did not extend the time fixed to apply for insolvency. It appears that when the appeal was finally dismissed, the execution Court of its own motion, on 11th August 1927, issued a notice to the surety to produce the judgment-debtor on 25th August 1927. The surety mistook this date for 29th and this mistake is accepted by the lower appellate Court. The 29th August being a holiday, the surety produced the judgment-debtor in Court on 1st September 1927. On that date the decree-holder applied that his decree may be executed against the surety (1) because an application for insolvency was not made within one month of 29th March 1927 and (2) because the judgment-debtor was not produced on 25th August. The non-production of the judgment-debtor has been explained and the explanation accepted by the lower appellate Court. Such non-production therefore did not amount to a breach of the surety bond. There was, however, a breach as already stated, on the failure of the judgment-debtor to apply for insolvency within one month of the date of the judgment-debtor's release and the decree would have been capable of execution against the surety, if the option lay with the decree-holder and not the Court whether to take out execution against the surety or to commit the judgment-debtor to the civil prison in execution of the decree.
3. The counsel for the decree-holder appellant quoted a ruling of the Madras High Court. Venkobanna v. Myachand Venichand : AIR1926Mad286 . There is a still earlier judgment of a Bench of two Judges of the Bombay High Court of 1924, in the case of Makanji Manji v. Bhukan Das Nagar Das A.I.R. 1924 Bom. 428, in which it was held that on the judgment-debtor failing to apply for insolvency within one month of his release, the surety may be called upon to pay the amount of the decree. Neither judgment, however, decides the question whether the option lay with the Court or with the decree-holder. In both cases the trial Court had exercised its option against the surety and the High Court held that such option was within the authority of the trial Court to exercise. The point was not raised whether a decree-holder can compel the Court to exercise option in a particular manner. The words of statute are that:
on default the Court may either direct the security to be realized or commit him (i.e. the judgment-debtor) to the civil prison in execution of the decree.
4. The language leaves no doubt that the option lies with the Court executing the decree and not with the decree-holder. In the present case the Court started proceedings against the judgment-debtor, required his presence in Court and did not proceed in execution against the surety. After hearing arguments the Court discharged the surety and directed the decree holder to take action against the judgment-debtor, who was at the moment present in Court. The Court not having proceeded against the surety and having proceeded against the judgment-debtor, decree-holder is not permitted by statute to proceed against the surety. This appeal is dismissed with costs.