1. This is an appeal against an order passed by the Officiating Subordinate Judge of Jalpaiguri affirming an order of the Munsif of the First Court of the same place. The matter is a short one. A certain debtor was arrested before judgment in a money-suit. The appellant became surety for him and the surety bond provided that the surety was to be liable in case the suit was decreed against the defendant and the decretal amount was not realized from him in execution. Eventually, a compromise decree was obtained in the suit whereby Rs. 80 claim was remitted and a period of one month was given within which the money was to be paid. The judgment-debtor, as a result of the execution proceedings paid two sums of Rs. 150 and Rs. 50 and decamped. Thereupon the decree-holders attempted in these proceedings to enforce the liability of the surety for the balance of the decretal amount.
2. The surety has taken a point that he is not liable because one month was given by the compromise decree for payment of the decretal amount and he says that as this time was given to the judgment-debtor without the surety's consent he has been released from his suretyship. We think that this contention is correct. The lower appellate Court seems to consider that in default of evidence that the turety did not agree to the compromise she decree-holders are entitled to succeed. But we do not think that this is really the point at issue. We think that one has got to consider whether by the terms of the suretyship bond it was in the contemplation of the parties that a decree would be obtained which was not immediately capable of execution and I cannot think myself that in a surety bond of this form it can be taken to be in the contemplation of the parties that there should be any delay in the execution of the decree. Surely, the surety could not have contemplated the liability continuing for an indefinite number of years which would be the case if the respondents' contention is correct. This being so we think that the decree is no longer enforceable against the surety under the; terms of the surety bond having regard to the fact that the compromise decree which was obtained was not immediately capable of execution against the judgment-debtor. For these reasons the order of the lower appellate Court is set aside and the appeal is allowed.
3. The appellant will be entitled to his costs in this and in the two Courts below. We assess the hearing-fee in this Court at two gold mohurs.
4. I agree.