1. The question involved in this appeal is whether a security bond executed by a surety on behalf of an appellant for the costs of an appeal, under Section 549 of the Code of Civil Procedure, can be enforced against the surety in execution of the decree of the Appellate Court, without a separate suit being brought against him.
2. The lower Appellate Court has held that it cannot be so enforced, and has accordingly disallowed the application of the decree-holder.
3. The main contention in appeal before us has been that the surety, by reason of the security bond executed by him in the Appellate Court, became as it were a party to the appeal, and that when Section 583 of the Code of Civil Procedure directs that the decree of an Appellate Court shall be executed according to the rules prescribed for the execution of decrees in suits, it can be summarily executed against a surety in accordance with Section 253 of the Code.
4. In order to be able to deal satisfactorily with this contention, it may be necessary to refer to some of the provisions of the old Code, Act VIII of 1859. Section 204 of that Code ran as follows: ''Whenever a person has become liable as security for the performance of a decree or any part thereof, the decree may be executed against such person to the extent to which he has rendered himself liable, in the same manner as a decree may be enforced against a defendant.' Section 342 was in these words: 'It shall be in the discretion of the Appellate Court to demand security for costs from the appellant or not, as it shall see fit, before the respondent is called upon to appear and answer, provided that the Court shall demand such security in all cases in which the appellant is residing out of the British territories in India, and is not possessed of any land or other immoveable property within those territories independent of the property to which the appeal relates; and, in the event of such security not being furnished at the time of presenting the memorandum of appeal or within such time as the Court shall order, the Court shall reject the appeal.' Section 362 provided that 'application for the execution of the decree of an Appellate Court shall be made to the Court which passed the first decree in the suit, and shall be executed by that Court in the manner and according to the rules hereinbefore contained for the execution of original decrees.'
5. Now, there can be very little doubt that, regard being had to the words of Section 204 as they stood in the old Procedure Code, the decree therein referred to would be a decree not only of the Court of first instance, but also a decree of the second Court (Section 204 read with Section 362); and it appears that it was held in several cases, both in this Court and in some of the other High Courts in India, that a security bond, executed by a surety for the costs of an appeal, could be enforced against him summarily in the execution department without a regular suit being brought for that purpose. If the words with which we are now concerned in the present Code of Civil Procedure-I mean the words of Section 253, to which I shall presently refer-were the same as those used in Section 204 of the old Code, there would not be any difficulty in accepting, the view which the appellant has placed before us. But it seems to us that the law upon this matter has been materially altered by Section 253 of the Code. That section runs thus: 'Whenever a person has before the passing of a decree in an original suit, become liable as surety for the performance of the same or of any part thereof, the decree may be executed against him to the extent to which he has rendered himself liable, in the same manner as the decree may be executed against a defendant.' The words 'a decree in an original suit' are significant enough as indicating the intention of the Legislature so far as the present question is concerned.
6. Now, looking to Section 380, Chap. XXIV, which contains the provisions, as regards security for costs, that may be required from the plaintiff in a suit in a Court of first instance, and to Section 253 just referred to, there can be no doubt that if a person becomes surety for a party before the passing of a decree in an original suit, he becomes, as it were, a party to the suit itself, and the security bond executed by him may be enforced in the same manner as a decree may be executed against a defendant.
7. The next section that has to be referred to in this connection is Section 549. This section empowers an Appellate Court to demand from the appellant, at its discretion, security for the costs of an appeal or of an original suit under certain circumstances; and it provides that if such security is not furnished when demanded within the appointed time, the Court shall reject the appeal. Then in Section 583 it is provided: 'When a party entitled to any benefit (by way of restitution or otherwise) under a decree passed in an appeal under this chapter, desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred; and such Court shall proceed to execute the decree passed in appeal, according to the rules hereinbefore prescribed for the execution of decrees in suits.'
8. When, therefore, a decree-holder applies to execute a decree of an Appellate Court, the Court shall execute it according to the rules prescribed for execution of decrees in suits; and we have to find out in Chap. XIX of the Civil Procedure Code the rules in accordance with which such a decree is to be executed. Now Section 253 is a section which occurs in Chap. XIX under the bead 'of the mode of executing decrees;' and the question that arises is whether, in providing that a decree of an Appellate Court is to be executed in accordance with the rules prescribed for execution of decrees in suits, the Legislature intended that Section 253, which expressly refers to a surety in an original suit, should be extended so as to bring in a surety, who becomes a surety in an Appellate Court, as if he were a party to the decree passed in appeal. It will be observed that Section 253 declares, in the first place, the liability of the surety, and, in the second place, the mode in which satisfaction can be had as against him; but this liability, as already noticed, is expressly declared in reference to a surety who becomes a surety in an original suit before the passing of a decree in that suit, and we are unable to say upon a consideration of the various portions of the Code that the provisions of this section can be extended and made applicable to cases not provided by the Code itself. There is no provision, so far as we have been able to discover, which prescribes expressly the liability of a surety who executes a bond in the course of an appeal in an Appellate Court. All that we find in Section 583, read with Section 549, is that an appellant is bound to furnish, when demanded by the Court, security for the costs of the respondent, and that where a decree is passed in an appeal, the decree of the Appellate Court is to be enforced in accordance with the rules prescribed for execution of decrees in suits. The decree of an Appellate Court is indeed to be executed according to the rules provided for execution of decrees in suits; but it does not follow from this that a surety who becomes a surety in an Appellate Court becomes liable by reason thereof as if he were a party to the Appellate Court's decree, and that the said decree can be executed against him summarily.
9. Then, again, if we look to Section 336, we find an instance in which a Court of first instance is empowered to demand security from a judgment-debtor who is brought up under a warrant; and in this case, if a security bond be executed for the purpose of getting Section the judgment-debtor discharged from arrest, a provision is made in this wise: 'In the case of a surety, such security may be realized in manner provided by Section 253.' So that it seems to be perfectly plain that wherever the Legislature intended that a security bond might be enforced summarily without the intervention of a regular suit, it has distinctly provided for it; but in the case of a surety who becomes a surety in an Appellate Court we do not find such provision made. We think that it would be straining the law if we were to give effect to the contention of the appellant that the surety in this case has become a party to the appeal, and that, in accordance with Section 253, the security bond can be enforced against him summarily. Our attention has been called to a Pull Bench ruling of the Allahabad High Court in the case of Bans Bahadur Singh v. Mughla Begum 2 A 604, where a majority of three Judges against two held that under the provisions of Sections 602, 603, and 610 of the Code execution could be had against a surety for the costs of an appeal to the Privy Council in accordance with Section 253; but we are not prepared to take the same view of the matter. We are rather inclined to agree with the minority of the Judges who composed the Full Bench, and with the decision of a Divisional Blench of this Court upon the same question in the case of Radha Pershad Singh v. Phuljuri Koer 12 C. 402.
10. For these reasons we think that the judgment of the Court below is right, and that this appeal should be dismissed with costs.