1. In execution of the decree in C.S. 34 of 1912 in the High Court, one Sayyed Mahomed Rowther was arrested. On 29th September 1914 the judgment-debtor and the present appellant as surety on behalf of the judgment-debtor executed a security bond for Rs. 4,443-2-0 in favour of the District Court of Ramnad in which Court the execution proceedings were pending, and the judgment-debtor was released. The bond provides for the payment of the amount either jointly or severally by the executants. There is also a further provision that in case of default in payment, the money should be recovered from the surety personally, and from the properties hypothecated under the security bond and from the other properties of the surety. The properties hypothecated are, it appears, situate in the Madura District. On the 8th February 1915 the appellant filed a suit (Original Suit No, 19 of 1915) in the Subordinate Judge's Court of Madura against the plaintiffs in C.S. No. 34 of 1912 and their judgment-debtor for a declaration that the security bond, had been fraudulently obtained by the defendants and was void and not binding on the appellants' properties and for cancellation of the security bond. It was alleged in the plaint that the appellant was a person of weak intellect and that the bond has been executed owing to undue influence, fraud and coercion practised upon him by certain persons acting in collusion with the defendants. A preliminary objection was taken by defendants (respondents) that the suit was barred by Section 47, Code of Civil Procedure. The Temporary Subordinate Judge held that the appellant had alternative remedies, (1) in execution proceedings in the Ramnad District Court and (2) by way of suit. He further decided that, as the appellant had a remedy in execution proceedings the Court should not in the exercise of its discretion grant the declaratory relief sought for and in the result, dismissed the suit. In appeal the District Judge took the same view and held ' that as the party had a remedy in execution and also an appeal,' the declaratory relief asked for was rightly refused.
2. Mr. Sitarama Rao for the appellant contended (1) that the lower Appellate Court ought to have held that no relief such as is claimed in the plaint could be granted in execution, (2) that the suit being for the substantial relief of cancellation of the document on the ground of undue influence and fraud which the executing court could not grant, the lower Appellate Court erred in holding that it had a discretion in relief, and that in any view of the case the discretion had been improperly and and illegally exercised.
3. The question raised in this appeal, viz., whether a third party who has given security on behalf of a judgment-debtor for the due performance of a decree has an independent right of application under Section 47 of the Code of Civil Procedure and can apply to the executing Court to cancel the security-bond on the ground that it was obtained by fraud or whether his only remedy is by way of suit is a novel one and not free from difficulty. No decision directly bearing on the question has been cited before us. Section 145 of the Code of Civil Procedure, which corresponds to Section 253 of the Code of 1882, is in these terms: '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 or (c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or any proceeding consequent thereon, 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. Provided that such notice as the Court in each case thinks sufficient has been given to the surety. ' The section provides a summary remedy in execution and dispenses with the necessity for a separate suit to the extent to which the surety has rendered himself personally liable. Motilal Virchand v. Thakore Chandrasangji I.L.R. (1911) Bom. 42 and Amir v. Mahadeo Prasad I.L.R. (1916) All 225, which were relied on by the learned Vakil for the appellant have no direct bearing on the question which we have to decide. In the 36 Bombay case it was held that where a bond is passed by third parties as security for restitution in the event of the decree being reversed in appeal the obligee may file a suit upon the contract contained in the bond. In Amir v. Mahadeo Prasad I.L.R. (1916) All 225, the learned Judges held that, if the surety takes upon himself more than the personal liability, and hypothecates immoveable property such hypothecation can only be enforced against the property by means of a regular suit.
4. The learned Vakil for the respondents has referred us to the decision in Subramaniam Chettiar v. Raja of Ramnad I.L.R. (1917) Mad. 327 : 34 M.L.J. 84. In that case the question was that whether when immoveable property has been given by the judgment-debtor as security for the due performance of a decree pursuant to an order made under Order XLI Rule 5(3) of the Code of Civil Procedure that property can be realised by a decree-holder in execution or can only he realised by a separate suit. The learned judges (Wallis, C.J., and Kumarsawami Sastri, J.,) were of opinion that the matter being one relating to execution under Section 47 of the Code of Civil Procedure a separate suit did not lie, and that the fact that the bond was given to the Court did not make it a question arising between the judgment-debtor and a third party so as to take it out of the section. At page 333 of the report the learned Chief Justice observed that it was unnecessary to deal with cases of security given by third parties under Section 145 of the Code of Civil Procedure.
5. The point for decision in this appeal is whether the surety can be regarded as a party to the suit, so as to entitle him to present an application to the Court executing the decree. In Linga Reddy v. Hussain Reddy I.L.R. (1904) Mad. 117, it was held on the authority of Thirumalai v. Ramayar I.L.R. (1880) Mad. 1, Sheik Suleman v. Shivram Bhikaji I.L.R. (1887) Bom 71 and other cases with reference to Section 253 of the Code of 1882 that the surety should be treated as a party to the suit, and cannot bring a suit for a declaration that he is not liable under the surety bond. Section 145 of the Code of Civil Procedure differs in some respects from the old section. Section 145 says that the surety shall 'for the purposes of appeal be deemed to be a party within the meaning of Section 47.' We think that the words' shall for the purposes of appeal be deemed to be a party' which were apparently introduced in order to give effect to certain rulings under the old Code. Sheik Suleman v. Shivram Bhikaji I.L.R. (1887) Bom 71 and Akhoot Ramanab v. Ahmed Eusoofjee (1871) 15 W.R. 538 only mean that if an order is made in execution against a surety, the surety may appeal against the order as if he were a party to the suit in which the decree or order sought to be executed was passed, and that the reference to Section 47 does not in other respect import into Section 145 the provision contained in Section 47 which bars a separate suit. If it were not for the provisions of Section 145 the liability of the surety would have to be enforced by a separate suit, because it does not arise under the decree but subsequently and under a separate contract with the Court. The effect of the section is that the surety may be made a party to the execution proceedings against the principal debtor, and an order against the surety is in effect a decree upon his separate contract against him for the payment of money. The surety is not a party to the suit or to the decree made therein, nor does he become a party to execution proceedings until application is made for an order against him. He is not a party to the suit within Section 47 and Section 145 only makes him a party for a limited purpose, namely, for appeal.
6. It is doubtful whether the question in this case relates to the execution, discharge or satisfaction of the decree, since it relates to the surety bond and not to the decree, and to the enforcement of the liability incurred thereunder and not under the decree. We doubt whether the surety, if he be not made a party to execution proceedings can intervene in a matter in which he has no interest.
7. We are unable therefore to agree with the conclusion arrived at by the lower courts that the surety has a right to apply under Section 47 to have the security bond cancelled.
8. The lower courts have refused the declaratory relief sought for on the ground that it was a discretionary relief and as the appellant had a separate remedy by way of suit. We think that the lower courts were wrong, and that the suit should have been tried on the merits. We accordingly allow the appeal with costs in this Court and reverse the decrees of the lower courts. The Temporary Subordinate Judge is directed to restore the suit to his file and dispose of it according to law. Costs in the lower courts will abide the result. The appellant is entitled to a refund of the Court fee of the Second Appeal.