Madhavan Nair, J.
1. In this case the appellant stood surety for the costs payable by the plaintiff in O. S. No. 67 of 1919. The suit was originally dismissed for default. On appeal it was restored and the High Court made it a condition precedent to the restoration of the suit that the plaintiff should furnish security for Rs. 1,000 for costs of the suit. The appellant deposited Rs. 1,000 as security. In the first Court a decree was given for the plaintiff. Then the appellant withdrew the amount deposited into Court. On appeal that decree was set aside. An application was made by defendant 1 to the lower Court for an order directing the appellant to bring into Court his costs of the suit on the ground that he has stood surety for costs and the lower Court made an order in terms of the application. The appeal is against this order.
2. Three points have been argued before us The first point is that the appellant has not undertaken any personal liability for the costs and so Under Section 145, Civil P.C. no proceedings can be instituted against him. It is argued that the fact that the appellant deposited Rs. 1,000 as security would show that no personal liability was contemplated between the parties. The decision in Brajendra Lal Das v. Lakhmi Narain Khanna 29 I.C.149, is relied on in support of the contention. But in that case the facts clearly show that when the promissory notes were deposited as security, it was distinctly understood that there was to be no personal liability so far as the surety was concerned. It is admitted that the appellant is a surety, and from the bare fact that he deposited Rs. 1,000 it cannot be inferred that personal liability, which attaches to every surety, is excluded. We think that the lower Court is right in holding that the appellant is personally liable for the costs.
3. The second point urged is that the obligation of the surety came to an end with the decree of the first Court and that it did not extend to the decree passed by the High Court. The question is one of some difficulty in this case as no security bond has been executed by the appellant; we have to infer from the order passed by the High Court the scope of the liability of the appellant. The decisions relied on by his counsel do not give us very much help. In Subbarama Aiyer v. Subba Aiyer : AIR1925Mad114 , the facts show that the security was given in connexion with Order 38, Rule 5. The learned Judges held that as soon as the suit was dismissed the security ceased to exist. That case does not apply; and so we have to decide the case on the wording of the order passed by the High Court. The order is in general terms: For the costs of the suit'. The learned Judges have not restricted the security to be given to the costs of the defendants which might be ordered by the decree of the first Court. We think on a construction of the order of the High Court, it cannot be said that the obligation of the surety is limited to the decree of the first Court.
4. The next point argued is that the order permitting the appellant to withdraw the money operates as res judicata and that none of the questions argued can be raised now. Having regard to the order it is difficult to see how the respondent is precluded from raising these questions. His counter affidavit filed in connexion with the petition says that he had then no objection to the withdrawal of the money. That is all. It cannot be held that all the questions now raised between the parties can be constructively said to have been decided in the course of that proceeding.
5. In these circumstances we uphold the order of the lower Court and dismiss this appeal with costs.