1. Two points of law have been raised in this appeal and a third point, also of law, has been argued with the permission of the Court.
2. It appears that Musammat Amrit Bibi, the respondent No. 2, brought a suit for recovery of her alleged dower-debt from the decree-holder, respondent No. 1, Mustafa Husain, who was in possession of some of the property of the late husband of Musammat Amrit Bibi, as an heir to his wife, the daughter of Musammat Amrit Bibi's husband. While the suit was pending, Mustafa Husain obtained an order from the Court to the effect that the plaintiff Musammat Amrit Bibi must furnish security for his costs. This security was furnished by the appellant Ata Husain. He gave a bond hypothecating a certain property, on the 25th of April 1922. The suit was decided against Musammat Amrit Bibi and Mustafa Husain has taken out execution for costs, He applied for the sale of the property hypothecated by Ata Husain and also he applied for the attachment and sale of certain other property, said to belong to Musammat Amrit Bibi.
3. Ata Husain objected to the execution proceeding against him and his case is that he is liable only after Musammat Amrit Bibi has been compelled to pay and has failed to do so and that a failure on the part of the decree-holder to execute the decree against Musammat Amrit Bibi amounted to a release of his liability. The point urged for the first time is that the appellant's liability can be enforced by a suit and not in execution.
4. As regards the plea that execution should proceed at first against the lady, we have to look to the language of the bond itself. The bond says that if the lady failed to obey the order of the Court the property of the surety would be liable and also he himself in case the property proved insufficient. There is no provision for the principal debtor being proceeded against as a condition precedent to execution against the surety. This disposes of also the connected plea that by not proceeding against the principal debtor the surety has been discharged. Section 139 of the Contract Act does not apply to the facts of the case. It is true that the learned Judge of the Court below suspected that the judgment-debtor Musammat Amrit Bibi had been won over by the decree-holder Mustafa Husain who is her son-in-law. But that Court did not arrive at any definite finding. I agree with the Court below that the question of collusion is immaterial. Even if there be any collusion the decree-holder has done nothing, no overt act by which it can be said that the principal debtor has been released from liability to the decree-holder or that any remedy of the surety against the principal debtor has been impaired. It is clear, therefore, that the two points taken in the grounds of appeal cannot succeed.
5. The third question is whether Section 145 of the C.P.C. applies and there can be no execution of the decree by sale of the property charged, in the execution department. This question cannot be decided without having regard to the language of the bond executed by the appellant. It is to be noted that there is no mortgage in the legal sense of the term. The appellant said in the bond that the Court had called upon Amrit Bibi to furnish security for costs to the amount of Rs. 600 and that, therefore, the appellant was offering himself as a surety agreeing that the amount of costs payable by the lady might be realised by sale of the property hypothecated and the balance from him personally. It is clear, therefore, that there is no mortgage in the proper sense of the term. There is no mortgagee and in the language of their Lordships of the Privy Council, the Court not being a juridical person it cannot be sued, it cannot take property and it cannot assign the mortgage: vide, Raj Raghubar Singh, v. Jai Indra Bahadur Singh 55 Ind. Cas. 550 : 42 A. 158 at p. 167 : 22 O.C. 212 : 6 O.L.J. 82 : 38 M.L.J. 302 : 18 A.L.J. 263 : 22 Bom L.R. 521 : 46 I.A. 228 : 13 L.W. 82 (P.C.). The bond before the Privy Council was in language very similar to the language of the bond now before me. The learned Counsel for the appellant has relied on the case of Amir v. Mahadeo Prasad 38 Ind. Cas. 33 : 39 A. 225 : 15 A.L.J. 76 and it was urged that the Court might assign the mortgage to anybody in order that the mortgage might be enforced by a regular suit. As was pointed out in the course of the argument, the observations in the case of Amir v. Mahadeo Prasad 38 Ind. Cas. 33 : 39 A. 225 : 15 A.L.J. 76 of Richards, C.J. at page 227, Page of 39 A.--[Ed.] that the bond could only be enforced by a regular suit brought by the Court itself or by some person to whom the Court could transfer the mortgage for the purpose of instituting the suit, go counter to the observations of their Lordships of the Privy Council already quoted. The position, therefore, is this that there is a liability undertaken by the appellant and there ought to be some method of enforcing the same. The method can be by way of execution alone as there is nobody to_ enforce the mortgage by means of a suit. This was the opinion of their Lordships of the Privy Council in the case of Raj Raghubar Singh v. Jai Indra Bahadur Singh, 55 Ind. Cas. 550 : 42 A. 158 at p. 167 : 22 O.C. 212 : 6 O.L.J. 82 : 38 M.L.J. 302 : 18 A.L.J. 263 : 22 Bom L.R. 521 : 46 I.A. 228 : 13 L.W. 82 (P.C.) and a similar view was taken by a Bench of this Court in Beti Mahalakshmi Bai v. Badan Singh 74 Ind. Cas. 927 : 22 A.L.J. 601 : 45 A. 649 : (1924) A.I.R. (A ) 105. I hold that the surety bond given in the present case can be enforced by execution alone and, therefore, the order of the Court below was correct.
6. The appeal fails and is hereby dismissed with costs.