1. This is a second appeal by defendant 2 a surety. The facts which were proved before the lower appellate Court are as follows: Defendant 1 Mukhtar Husain, was appointed a mukhtar to the Court of Wards on 13th April 1920, and at the time of his appointment defendant 2 executed a surety bond in form No. 12 printed on pp. 97 and 98 of the Court of Wards Manual. Evidence was given before the Munsif, the Court of first instance, to the effect that on 22nd December 1923, defendant 1 the mukhtar of the Court of Wards withdrew Rs. 175 from the treasury which had been deposited for payment to Court of Wards as compensation in a land acquisition case. Plaintiff's witness 1 Wahid Ali stated that defendant 1 having withdrawn this money did not deposit it in the Court of Wards. The suit was brought against both defendants and was defended only by the appellant, defendant 2. The Court of first instance dismissed the suit and the lower appellate Court has decreed it against both defendants. The first two grounds of appeal put forward the argument that as there is no finding that the money was received by defendant 1 in due discharge of his duties and as it is admitted that he acted beyond the scope of his authority in realizing this money, therefore, defendant 2 the appellant is not liable. It is true that the mukhtarnama dated 28th May 1923, from the Deputy Commissioner in charge of the Court of Wards to defendant 1 states that defendant 1 is not to receive any money payable to the Court of Wards. Contrary to that direction defendant 1 drew this sum of money from the treasury. But the security bond executed by defendant 2 states that defendant 2 is liable as follows:
The said... A.B... shall truly and faithfully perform his duties as... under the said Court of Wards and shall from time to time and at all times account for, render and deliver in such a manner and to such persons as he may by the said Court of Wards be required, all moneys, securities for money and property what so ever which he, the said A.B., may receive or be entrusted with by virtue of his office as... in the said Court of Wards department and shall not embezzle, with hold, destroy or anywise injure any such moneys, securities for money and property as aforesaid, then the above written obligation shall be utterly void; otherwise the same shall remain in force and virtue.
2. This provides not only that the servant of the Court of Wards shall truly and faithfully perform his duties but that the servant shall account for to the Court of Wards all money which he may have received or be entrusted with by virtue of his office. Now, although in receiving the money from the treasury defendant 1 was not performing his duty as mukhtar and in fact acted contrary to instructions in his mukhtarnama, it appears clear that he was entrusted with the money by treasury by virtue of his office, as mukhtar. In other words if he had not been the mukhtar of the Court of Wards the treasury would not have given him this money. It appears to me that this is the meaning of the expression 'in virtue of his office as mukhtar.' That is, the expression includes acts done in the capacity of mukhtar whether the mukhtar was carrying out the rules laid down for him or not in doing those acts. I consider, therefore, that the security bond of the appellant-defendant 2 makes him liable for the act in question.
3. Ground of appeal No. 4 objects to the lower appellate Court admitting additional evidence. It was argued before the lower appellate Court that the embezzlement by defendant 1 had not been, fully proved and the lower appellate Court recalled a witness and received in evidence certain reports showing that the money had been withdrawn by defendant 1 from the treasury. I do not consider that the lower appellate Court was wrong in admitting this evidence.
4. Ground 5 alleges that the lower appellate Court was wrong in considering that the surety should prove that the money received by the servant was not actually embezzled by him. This ground appears to be taken under a misapprehension, as even in the Court of first instance P.W. 1 Wahid Ali stated that defendant 1 withdrew the money from the treasury and did deposit in the Court of Wards. This embezzlement was more fully proved by the evidence admitted by the lower appellate Court.
5. Ground 6 alleges that the plaintiff was not entitled to interest by way of damages. It is true that there is no provision in the security bond of defendant 2 for payment of interest on sums embezzled although that bond as printed at p. 98 refers to 'any loss that may have been incurred.' Under Section 128, Contract Act:
the liability of the surety is co-extensive with that of the principal debtor unless it is otherwise provided by the contract.
6. Now the liability of defendant 1 in civil law is for tort in regard to the amount which he embezzled and naturally interest on that amount would be allowed against defendant 1 by way of damages. In virtue, therefore, of Section 128, Contract Act, defendant 2 is also liable for interest on the sum embezzled. Interest has been allowed at 12 per cent per annum from the date of embezzlement, 22nd December 1923, to the date of suit.
7. Ground 7 was that the suit was time barred. No argument was addressed on this ground and as pointed out by the lower Court the bond was a mortgage-deed of 1920 and could be enforced within 12 years. I dismiss the appeal summarily.