Pakenham Walsh, J.
1. This is an appeal against the order of the District Judge of South Malabar confirming an order of the District Munsif, Calicut, dismissing E.P. No. 3100 of 1926, to issue a warrant of arrest against one Baputti (the respondent) who stood as 2nd surety for the production of certain articles attached in execution of a decree obtained in O.S. No. 417 of 1921.
2. The facts are fully stated in the judgment of the District Munsif. Those which are relevant to the appeal are that the decree-holder (appellant) put in E. P. No. 614 of 1922, on 3rd April, 1922, for attachment of moveables. They were left in the possession of this Baputti and another who executed a bond for their production. The material terms of the bond run:
Agreeing that if any default is made in respect of the said properties,, ourselves, the properties belonging to us, and our heirs in succession, would be liable for all the loss that may be sustained thereby, and for any amount that may be directed by the Court.
3. In a bond of this sort there is no reason for the sureties making themselves responsible for the decree amount, with which they are not concerned, and they are not liable for it unless they make themselves so in the clearest terms. It cannot be contended, and in fact has not been contended before me, that the words 'for any amount whatever that may be directed by the Court', can make them liable for the decree amount. It is conceded that the words refer to any amount for which the Court may hold them liable under the terms of the bond.
4. On 6th July, 1922, notice was sent to the sureties to produce the articles and they filed an application on 31st August, 1922, that the properties should be sold at the place where they were kept as they consisted of logs of timber. This request was granted. They did not produce the articles. On the 11th September, 1922, the debtor and the 1st surety applied to the Court in M.P. No. 1090 of 1922, urging that as the decree-holder had failed to apply for the sale of the property within two months of the date of the precept the attachment was not in force, and they prayed that the surety bond might be cancelled. It was held that they were barred by estoppel and res judicata from raising the contention and this decision was confirmed in appeal.
5. On 20th November, 1922, E.P. No. 618 of 1922, was put in to arrest the 1st surety. There was a further application dated 2nd March, 1923, to the same effect. The 1st surety was arrested and kept in jail for 6 months the proceedings terminating in September, 1923, when the petition was closed.
6. On 18th January, 1926, M.P. No. 126 of 1926, was put in for transfer and to have the assignment recognised in favour of the assignee decree-holder and a similar petition on M.P. No. 564 of 26th June, 1926, to have the assignment recognised. On 18th August, 1926, the present E.P. was put in by the assignee decree-holder to execute the decree by the arrest of the 2nd surety, the respondent.
7. The District Munsif found it barred by limitation. He thought apparently that it came under Article 182 of the Limitation Act. On appeal the learned District Judge held that in the form it was presented it was not maintainable and that in any case it was time barred as against the 2nd surety (respondent).
8. I agree in every point with the view taken by the learned District Judge. In Rajah Raghubar Singh v. Jai Indra Bahadur Singh (1920) L.R. 46 IndAp 228 : I.L.R. 42 All. 158 : 38 M.L.J. 302 (P.C.) the Privy Council held no doubt that a suit is not necessary to enforce a bond like the present and laid down the procedure but their Lordships say (at p. 167)
It remains therefore that there is an unquestioned liability and there must be some mode of enforcing it and that the only mode of enforcing it must be by the Court making an order in the suit upon the application to which the sureties are parties, that the properties charged be sold unless before a day named the sureties find the money.
9. In that case what was to be produced was money, here it is articles, but the bond was of the same sort.
10. This has been interpreted by a Bench of this Court in Sankunni Variar v. Vasudevan Nambudripad : AIR1926Mad1005 as follows:
This is certainly authority for the proposition that although the case does not come within the terms of Section 145, the Court has inherent power to enforce the bond without recourse to a suit.
11. I am bound by this opinion and cannot therefore follow Madho Prasad v. Pearey Lal (1921) 62 I.C. 719, which case was no doubt after the Privy Council decision, but in it the Privy Council decision is not alluded to at all, and it was apparently not brought to the notice of the Court. It is clear therefore that steps to enforce a bond of this sort do not fall under Section 145. Steps therefore taken in execution against the judgment-debtor are not steps against the sureties nor are steps in execution against the sureties, steps in execution of the decree itself. There is no authority at all to the contrary and the injustice and anomalies of any doctrine which would render steps in execution against the judgment-debtor steps against the sureties, who have only agreed to produce certain articles attached in execution, are obvious. In the first place it would mean that even if the sureties have produced the articles, so that their obligation under the bond has been fully discharged, yet execution is still somehow proceeding against them if subsequent execution is taken against the judgment-debtor for the balance not covered by the articles sold. It would also follow that where the sureties had not produced articles, of perhaps quite a trifling value, and no steps had been taken against them to enforce their bond, the decree-holder could come up some 12 years afterwards, if he had kept execution of the decree alive by proceedings against the judgment-debtor, and say that limitation was saved.
12. In furnishing such security the sureties cannot have any legal knowledge imputed to them except that there has been a decree against somebody, that property has been attached in execution of it, and that they have made themselves responsible for its production to Court when called for. They need not even know who the judgment-debtor is, nor do they undertake the smallest responsibility for his conduct or for paying the decree amount. This injustice therefore of counting steps taken against him in execution, with which they have no concern, and of which they may have no knowledge, to save limitation against them in enforcing their bond, if they have defaulted, is obvious. It is unnecessary to consider the converse case whether steps taken against the sureties will be steps against the judgment-debtors to save limitation. Consequently the petitions of 18th January, 1926 and 8th June, 1926, are not available to save limitation.
13. But it is argued that at least the petition for arrest taken out against the 1st surety on 2nd March, 1923, which was not disposed of till September, 1923, will make this E.P. against the 2nd surety on 18th August, 1926, in time. I agree with the learned District Judge that, looking at the decisions in Rajah Raghubar Singh v. Jai Indra Bahadur Singh (1920) L.R. 46 IndAp 228 : I.L.R. 42 All. 158 : 38 M.L.J. 302 (P.C.), and Sankunni Variar v. Vasudevan Nambudripad : AIR1926Mad1005 , the present application is governed by Article 181, and not Article 182, of the Limitation Act. Assuming that the E.P. of 2nd February, 1923, could save limitation, as against the 1st surety it is, I think, quite clear that it cannot do so with regard to the second surety. The mere fact that the name of the 2nd surety is mentioned in that application, without any relief being sought against him is not enough Vide Wazir Baksh v. Hari Ram A.I.R. 1922 Lah. 208.
14. I may mention a case which came to my notice after arguments and to which I afterwards drew the attention of the learned Advocates though, for reasons to be stated, I am not prepared to follow one of the opinions expressed in it. This is a Civil Miscellaneous Second Appeal No. 211 of 1927, recently decided by Madhavan Nair, J., and reported in Rami Reddi v. Gurumurthi (1932) M.W.N. 1296. The learned Judge there held that the cause of action in a case of this sort arose on the date on which the conditional liability to produce the property came into existence, i.e., the date of the security bond, and not on the date that the surety defaulted in producing it. Of course if that view is correct the appellant is still more out of time as the date of the security bond is 7th April, 1922, but I will assume for the purposes of the argument that the date is the one he contends for, when default in production was made, which is put at 11th September, 1922, when the sureties put in the petition asking that the bond should be cancelled.
Madhavan Nair, J.
15. While, in the matter of holding that a suit to enforce the bond is not necessary, he refers to Sankunni Variar v. Vasudevan Nambudripad : AIR1926Mad1005 , states in an earlier paragraph that no authority had been quoted that the provisions of Section 145 will not apply and he says that resort is invariably had to Section 145, Civil Procedure Code, in such cases.
16. In my opinion the two cases quoted above are clear authorities that Section 145 does not apply and the Bench in Sankunni Variar v. Vasudevan Nambudripad : AIR1926Mad1005 has read the Privy Council decision in that sense. It would have been perfectly easy for their Lordships to have said that though a suit is not necessary Section 145 will apply. Instead of that they give quite a different procedure which is to get an order from Court, after notice to the sureties, that the bond is forfeited and then to proceed to execute that order. As I said above I am in any case bound by the Bench view on the point. Some argument was raised about estoppel or res judicata on account of the decision in M.P. No. 1090 of 1922. There, I consider, is no estoppel arising from that petition nor res judicata with regard to the contention that the present petition is in the wrong form and that it is time barred. That petition C.M.P. No. 1090 of 1922, was one to declare the bond cancelled and the only effect of its dismissal was to settle that the bond was in force and executable then. The E.Ps. for arrest on the 1st surety were taken out subsequently to this and even if they could be res judicata as against the 1st surety on the point that the execution could be taken out in this way, without an order of liability on the bond being passed by the Court, they could not possibly be res judicata against the 2nd surety against whom no action was sought under them. In my opinion the procedure now adopted is misconceived being premature. It is necessary first to obtain an order of the Court declaring the bond of the 2nd surety forfeited. Even if the present petition were to be treated as such an application it is barred by limitation being made more than three years not only from the date of the bond (if the view of Madhavan Nair, J., in the case quoted above be taken as correct), but also from the date of the alleged default. The second appeal fails and is dismissed with costs.