1. This is an application in civil revision by a plaintiff whose suit has been dismissed by a Small Cause Court on the ground that the suit is barred by Section 145, Civil P.C. The plaintiff claimed that he had a decree in the Revenue Court against a third party and that in execution a buffalo and calf had been attached and entrusted to the defendants as superddars, that the defendants did not produce these animals for sale before the amin when required to do so and he therefore sued these defendants for the value of these animals. The lower Court has held that the plaintiff should have proceeded in the execution Court under Section 145, Civil P.C. and that that section bars a suit such as the present brought by the plaintiff. The Court has acted on a ruling in Piare Lal v. Sitaram 1929 All. 266, by Dalai, J. That case was similar and the learned Judge held that the Section 145 acted as a bar. He did not give any reasoning for this conclusion. The plaintiff claims that he has a remedy under Section 145, Civil P.C. in execution or by way of a separate suit. In Section 145 it is stated that:
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, 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.
Now this section states that the person in question is to be deemed a party within the meaning of Section 47 for the purposes of appeal, but it does not state that he is to be deemed a party within the meaning of Section 47 for any other purpose.
2. It does no doubt state that the decree or order may be executed against him, but it does not state that it may be executed as if he were a party under Section 47. If there had been such a statement in the section then it might be held that Section 47(1) would prevent any separate suit because that sub-section lays down that all questions arising between the parties shall be determined by the Court executing the decree and not by a separate suit. I. am of opinion that Section 145 did not intend to impose this restriction in the case of a person who was liable under Section 145, and there is nothing in the language of Section 145 which indicates such an intention. This opinion I may note is also shared by the learned Chief Justice in Shakit Hussain v. Chandoo Lal 1931 All. 567. It is true that the particular question was not before the Court in that case and the observation therefore may be considered as obiter dictum, but I consider that it was a correct statement of law. Learned Counsel has also relied on Ramanathan Pillai v. Doraiswami Aiyangar 1920 Mad. 75, in which it was held that where a person stands surety for a judgment-debtor for the due performance of the decree and desires to cancel his security bond on the ground that it was obtained by fraud and undue influence he has no remedy to apply under section 145, Civil P.C. but must proceed by a suit and that Section 145, Civil P.C. does not make him a party to the suit within the meaning of Section 47, Civil P.C. In Motilal Virchand v. Thakore Chandrasanji Himatsangji 36 Bom. 42, it was held that where a bond is executed as security for restitution in the event of a decree being reversed in appeal a suit upon such a bond lies. In Khairunnissa Bibi v. Oudh Commerical Bank Fyzabad 1933 All. 269, a Full Bench of this Court has held that it is necessary that a regular suit should be brought for the enforcement of a hypothecation lien on immovable property mortgaged as security in a suit and that it is not open to the Court to proceed in execution without a separate suit being brought.
3. Reference was also made to an old ruling of this Court in Abdul Kadir v. Huree Mohun (1874) 6 N.W.P.H.C. 261, where it was held that the corresponding Section 204 of Act 8 of 1859 gives a remedy to the decree-holder against a surety in addition to any remedy which he might have on the surety bond, but that the section does not prevent the decree-holder from bringing a suit on the surety bond to enforce the contract made by him with the surety and the lien on the property mortgaged to secure the performance of that contract. It is true that this ruling and the Full Bench ruling which I have quoted both refer to the case of mortgages of immovable property given by way of surety, but I consider that the principal will also apply to a case like the present and that the plaintiff has a remedy by way of suit. Accordingly I set aside the decree of the lower Court and remand the case for disposal on the remaining issues. Costs hitherto incurred will abide the result. The court-fee of this Court will be returned to the plaintiff under Section 13, Court-fees Act.