1. Briefly stated, the order of the District Judge, which we are asked to revise, has arisen out of the following facts. One Angadi Soogamma, acting as next friend of her minor son Nanjundappa who had been adopted into another family, brought a suit (Original Suit No. 24 of 1910) for the recovery of considerable properties belonging to the minor and obtained on compromise a decree for the possession of moveable properties worth about Rs. 90,000. Under Order XXXII, Rule 6 of the Code of Civil Procedure, she was required to furnish security for the cash and jewels handed over to her. The petitioner before us, Kurugodappa by name, stood surety for her to the extent of Rs. 50,000 and executed a bond in April 1911. In February 1914, Soogamma presented an original petition to the District Judge, alleging inter alia that Kurugodappa, out of Rs. 44,945 in cash, jewels and bonds belonging to the minor's estate delivered to him by the Court, had retained Rs. 12,340 in his own hands, that he claimed and got Rs. 2,000 as consideration for standing surety, calculated at the rate of one-quarter of the minor's income, and that he had borrowed two sums of Rs. 500 and Rs. 2,600 from the minor's estate and had failed to repay them in full. She, therefore, asked the Court to cancel his security bond, to direct him to pay into Court all the moneys received by him, and to make such other directions as might be deemed sufficient to protect the minor's property from waste. It may here he noted that the first request, if granted, would have defeated the very object of requiring the security, namely, that the minor's estate should be guaranteed against waste and mismanagement, of. Subroya Chetty v. Ragammall 14 M.L.J. 482. The District Judge upon this petition held an enquiry and came to the conclusion that a sum of Rs. 10,600 handed over to Soogamma and Kurugodappa by the minor's Vakil had not been accounted for satisfactorily, that both were responsible for making it good to the estate of the minor, and finally he ordered the attachment of Kurugodappa's property to the Value of Rs. 10,600.
2. An objection is now taken that the District Judge had no jurisdiction to attach the petitioner's property, and on this ground I think we must set aside the order.
3. Where a guardian appointed under the Guardians and Wards Act fails to account for the property of his ward received by him, Section 35 of that Act empowers the Court, on being satisfied that the guardian has not kept his engagement, to assign the bond to a proper person for suing upon it and recovering what may be due. The Court itself does not sue upon such bonds, and in Ganpat v. Anna 7 Bom. L.R. 803 it was shown how undesirable it would be that the Court should do so.
4. Apart from (a) attachments made in execution under Orders XXI and XXXVIII at the instance of decree-holders in esse or in posse after and before judgment, (b) attachments under Order XXXIX, Rule 2, at the instance of plaintiffs against persons disobeying injunctions of the Court, and attachments made by the Court itself, (c) under Order XVI, Rule 10, of the property of witnesses who disobey a summons of Court and (d) under Order XL, Rule 4, and Section 94 (d) of the property of receivers who neglect to perform the duties of their office, I am not aware of any power conferred by the Code of Civil Procedure to attach the property of individuals.
5. In this case the District Judge's order does not disclose the provision of law under which the order of attachment purports to have been passed., He says that he is only concerned with the loss to the minor's estate, and that the liabilities as between Soogamma and Kurugodappa must be settled in a regular suit. He observes that it may be necessary to appoint a receiver in Soogamma's place but he does not appoint one.
6. From the allusion to a receiver, it may be that the District Judge had in mind the provision of Section 94(d), which is declared to have the object of preventing the ends of justice from being defeated and speaks of a receiver being appointed in certain cases and of the performance of his duties being enforced by attachment and sale of property, but it is evident that what is meant here is the attachment and sale of the receiver's own property and not the property of any person in the position of a defendant or surety.
7. The petition upon which the District Judge proceeded was presented under Order XXXII, Rule 6, and an attempt has been made in this Court to justify the order of attachment as being within the words of that rule.
8. The rule deals with the receipt of property under a decree by a next friend or ad litem guardian of a minor, not being a guardian under the Guardians and Wards Act, or being such and yet being under some known incapacity, and it provides that the Court 'shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application'. It is sought to include an order for the attachment of the surety's property as falling under such directions as will,' etc. I am clearly of opinion that the Legislature could not have intended to include such a large power as that of attaching the property of a person not a party to any suit or decree within the cognizance of the Court under the category of mere 'directions'.
9. Again, the authority of Section 145 of the Code of Civil Procedure has been invoked. This permits a Court to execute a decree or order against a person who has become liable as a surety for the performance of a decree, for the payment of any money, or for the fulfilment of any condition imposed on him under an order of the Court in any suit or in any proceeding consequent thereon to the extent to which he has rendered himself personally liable, as if he were a party.
10. The section refers to the enforcing of the liability of sureties in the manner provided for the execution of decrees. It will not cover the case of a surety who has given a bond irrespective of any decree of Court. See Narayanamma v. Ramayya Chetti 22 M. 268 ; 8 M.L.J. 199. That decision was with reference to the corresponding section of the Code of 1882, and the language of the present Code is no doubt wider, as it extends to orders in any suit or any proceeding consequent thereon. But we are not concerned here with the execution of any decree or order of Court, as may be seen from the fact that the present proceedings were started by the next friend of the plaintiff, not in execution of the decree in Original Suit No. 24 of 1910, but through what is termed an original petition with the view to protect the minor's interests arising after and independently of the result of the suit.
11. In these proceedings Soogamma is not seeking to enforce any previous order or decree against her surety. Her remedy, therefore, lies in a regular suit in which the questions of fact, upon which their respective, liabilities depend, can be adequately tried and determined.
12. The order directing attachment of Kurugodappa's property is set aside, as made without jurisdiction. The respondents will bear their own and petitioner's costs in this Court.
Sadasiva Aitae, J.
13. I entirely agree. I think that Section 145 of the Civil Procedure Code, which allows execution against a surety, can apply only where the Court passed an order or decree which it intended to be an order or decree enforceable through execution by one or some of the parties to a suit or other proceeding against another party or other parties thereto. Here the order under Order XXXII, Rule 6, Clause (2), requiring the next friend of the minor to furnish security was clearly not an order in favour of any of the parties to the suit to be enforced against another party or other parties thereto, but an order passed for the protection of a minor's interests against that minor party's own next friend. This was clearly not intended to be an order executable in the suit by the minor against his next friend and, therefore, it could not be executed against the surety of the next friend under Section 145 of the Code of Civil Procedure.