Francis W. Maclean, K.C.I.E., C.J.
1. In this case the plaintiffs obtained an ex parte decree against the defendant. The decree was set aside at the instance of the defendant, and it was set aside on terms, one of the terms being that the defendant should find a surety, who would be responsible for any amount that might be found due from the defendant by any decree to be subsequently made in the suit. The plaintiffs did not object, and the surety gave a bond to be so responsible.
2. I think the Court had ample jurisdiction under Section 108 of the Code of Civil Procedure to set aside an ex parte decree on those terms. A decree was subsequently made against the defendant at the hearing of the suit, and the decree-holders sued out execution both against the defendant and the surety, relying on Section 253 of the Code of Civil Procedure.
3. The Court below has refused execution against the surety, hence the present appeal by the present decree-holders.
4. Dr. Rash Behary Ghosh for the objector argues that Section 253 does not apply to the case, because the surety here did not become liable before the passing of a decree in the original suit, but became surety only after the ex-parte decree was pronounced. I think this contention is not well founded, for the words, in my judgment, mean 'before the decree in the original suit' which had not been made but which would be made if the litigation proceeded, and for the performance of which the surety became liable. He became liable for a decree in an original suit which had not been passed when he became surety. I think then that the decree-holders were entitled to take out execution against the surety.
5. A further point is taken that the surety-bond was a mortgage of immovable Property, and that, having regard to the terms of Section 59 of the Transfer of Property Act, such a mortgage could only be enforced if it had been registered and attested by at least two witnesses. I understand this document has not been either registered or attested by two witnesses. The decree-holders answer this argument by saying that they do not rely on the document as a mortgage; they are not setting up any right to a charge on the property mentioned in the mortgage, but they say it is evidence of a money debt for which the surety made himself personally liable. The surety then contends that Section 68 of the Evidence Act is a conclusive answer to this argument, and relies on a decision of the Madras High Court in the case of Madras Deposit and Benefit Society v. Oonnamalai Ammal (1894) I.L.R., 18 Mad., 29. Section 68 says: 'If a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution,' and so forth.
6. But the document in this case, as far as it creates a mere money or personal liability, does not, so far as I am aware, require to be attested, and, if so, Section 68 does not apply. It is not set up as a mortgage. In this view, speaking with every deference, I am not disposed to agree with the case which has been cited.
7. Upon these grounds the order of the Lower Appellate Court must be reversed, and execution must be proceeded with against the surety.
8. The appellants will get costs in this and in the Lower Appellate Court.
9. I am of the same opinion. The Lower Appellate Court has set aside the order of the first Court allowing execution to proceed under Section 253 of the Code of Civil Procedure against the person who became liable as surety for the performance of the decree, on the ground that the surety-bond was taken by the Court under circumstances under which it had no authority to take the bond.
10. It is contended by the learned Vakil for the appellants that this view of the Lower Appellate Court is wrong, and that the Court, which took the surety-bond had ample authority to do so under Section 108 of the Code.
11. The only objection to the taking of the bond that the Lower Appellate Court points out is that the bond was taken by the Court without satisfying itself that the summons was not duly served, or that the defendant was prevented by any sufficient cause to appear, when the case was called on for hearing. It is said that the 'terms as to costs, payment into Court or otherwise,' can be imposed under Section 108 of the Code, only if the Court is satisfied that the summons was not duly served, or that the defendant was prevented by sufficient cause from appearing. Granting that this is so, there is nothing to show that the Court was not satisfied on these points before the surety-bond was taken. It is true that the ex parte decree was set aside by consent, but if the petitioner's adversary consented to the decree being set aside on the ground either that the summons was not duly served or that the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing, that would be the best method of satisfying the Court that the ground alleged was well founded.
12. I am clearly of opinion, therefore, that the ground upon which the Lower Appellate Court has held the surety-bond to have been irregularly taken is wholly untenable.
13. The learned Vakil for the respondent does not seek to support the judgment on that ground, but he contends, first, that under Section 253 of the Code there is nothing to warrant the decree being executed in this case against the surety; and, secondly, that the bond is altogether bad being in contravention of Section 59 of the Transfer of Property Act read with Section 68 of the Evidence Act.
14. As to the first point, what is urged in support of it is, that the respondent did not become liable as surety 'before the passing of a decree' in the original suit within the meaning of Section 253 of the Code, an ex parte decree having been made in that suit, and having been in force at the time when he became surety.
15. I do not think this contention is sound. Though an ex parte decree had been made, it was set aside, and we must take it that it was set aside simultaneously with the order for taking security, so that it could not be said that the respondent became liable as surety after the passing of a decree in the original suit which was then in force, or which has remained in force. The setting aside of that decree must have the same effect as if no such decree had been made at all.
16. As to the second point urged in support of the order of the Lower Appellate Court I have nothing to say in addition to what has been said by the learned Chief Justice.