1. The defendant in Original Suit No. 174 of 1921 on the file of the Subordinate Judge's Court of Madura, was arrested upon an execution petition, Execution Petition No. 60 of 1921. After arrest he paid Rs. 1,750, and as regards the balance, there was an application (Execution Appeal No. 178 of 1922) under Order XXI, Rule 40 that he should be released from custody on Security being given for his re-appearance. The surety-bond executed by the appellants in this case provided that the defendant should be brought before the Court on the 4th of July 1922, and that the sureties would be responsible for bringing him before the Court on that date, and that in case of failure to produce him on the said date they agreed that they themselves, their heirs and other properties should be liable for Rs. 7,200, the balance due under the decree. It does not appeal whether any proceedings took place in Court on the 4th of July 1922, but on the 20th of July 1922 the decree-holder presented a petition asking for warrants against the defendant and the sureties for the balance due under the decree. It appears from the manuscript execution petition that the relief asked for was altered in consequence of an office note put up in the Subordinate Judge's Court, and that the relief as finally asked for was that the sureties be ordered to produce the defendant in Court and that, in default, warrants should be issued against the defendant and the sureties. The decree holder amended the prayer as directed, noting at the same time that the sureties were bound to produce the judgment-debtor in Court in the 4th ci July and that by failure to do so they had rendered themselves liable for the decree amount.
2. The present appeal arises out of on application under Section 47 of the Civil Procedure Code, but wrongly described as an application under Section 151, for cancellation of the Court's order directing arrest warrants against the judgment-debtors sureties. The Subordinate Judge held that the order for arrest already passed was a proper order and dismissed the petition.
3. Now it is argued, first, that as the Execution Petition No. 60 of 1922 had been treated as closed on the 29th April 1922, the liability of the sureties came to an end. In support of this argument the decision n Lalji Sahoy v. Odoya Sunderi Mitra 14 C. 757 : 7 Ind Dec. 502 has been cited. That was a decision of the Calcutta High Court upon Section 336 of the Civil Procedure Code of 1882. The authority, of this decision has been questioned in Sundara Reddi v. Varadharaja Pillai 34 Ind. Cas. 407 : 2 M.W.N. 273, and as it deals with an application under Section 336, which corresponds to Section 55 of the present Code, a case of a judgment-debtor expressing his intention to apply to be declared an insolvent and furnishing security for appearing when called upon, this decision has not much bearing on the question now before us, In the present case, although Execution Petition No. 60 of 1922 was noted as 'closed' there it no order dismissing the petition and it must be noted that the security was given in connection with Execution Appeal No. 178 which is not shown as disposed of at any time previous to the order directing warrant to issue against the sureties.
4. Then, it is argued that the effect of the decree-holder asking that the sureties should be produced in Court on a date subsequent to the 4th of July 1922 was that he condoned the default to produce the defendant on the 4th of July. The liability of the sureties to pay the decree amount in the present case is governed strictly by the terms of the bond which they gave. In that bond they distinctly promised to produce the defendant before the Court on the 4th of July and they agreed in default thereof to be. liable for Rs. 7,200. The amendment in the execution petition presented on the 20th of July, Execution Petition No. 118, was made under the order of the Court under some mistaken impression that the surety-bond provided for the production of the defendant on any date subsequent to the 4th of July on which the sureties might be required to produce him, and that the bond had not already been broken when the execution petition was presented. If the execution, petitioner's Vaki amended the prayer in the petition under the directions of the Court, that will not amount to any relinquishment or waiver of his right to enforce the surety-bond. Although the execution petition was in the proper form when first presented and the sureties were not liable by the terms of their bond to be ordered to produce the defendant at a date after the 4th of July, the order finally passed, against which they appeal, was under Section 145, for executing the decree against them, and is not open to any legal objection.
5. Lastly, Mr. Rajah Aiyar for the appellants argues that the sureties have not been given any notice that the decree-holder intended to proceed against them for default on the 4th of July and thus they have had no opportunity of showing that they did produce him on that date or of explaining their failure to produce him if in fact they did not do so but in the grounds of Civil Miscellaneous Appeal it is not anywhere suggested that appellants in fact complied with the terms of their bond and that the lower Court should have found that in fact they produced the judgment-debtor on the 4th of July. The question before the lower Court and in the appeal was only whether the order to arrest the sureties for failure to comply with the terms of their surety- bond was correct and on this pint we cannot come to any other conclusion but that the lower Court was right.
6. The Civil Miscellaneous Appeal is dismissed with costs.