Maclean, C.J. and Banerjee, J.
1. The question raised in this appeal, which arises out of a proceeding in execution of a decree, is whether the order of Her Majesty in Council, which awards costs to the respondents, can be executed against the surety, the appellant before us, notwithstanding that the mortgage bond which creates the liability of the surety is not attested by witnesses as required by Section 59 of the Transfer of Property Act. The Court below, applying the principle laid down in Nitye Gopal Sircar v. Nagendra Nath Mitter (1885) I.L.R., 11 Cal., 429, has held that the requirement of the law as to the attestation of mortgages above a certain value is satisfied by the signatures of the Sub-Registrar and the identifiers of the executant below the registration endorsement recording the admission of execution, and it has accordingly allowed execution of the order for costs to proceed against the surety.
2. Against this decision the surety has appealed; and it is contended on his behalf that the Court below is wrong in holding that the signatures below the registration endorsement supply the place of attestation by witnesses.
3. We are of opinion that this contention is valid. The attestation required by Section 59 of the Transfer of Property Act is attestation by witnesses of the execution of the document, and not of the admission of execution. That is the ordinary sense of the expression 'attestation by witnesses'--see Sharpe v. Birch (1881) L.R., 8 Q.B.D., 111. If we look at the document itself the signature of the mortgagor does not purport to be attested. The signatures of the Sub-Registrar and of identifier are on the back of the mortgage bond, not on the same side as the signature of the mortgagor on the face of the bond. Having regard then to the provisions of Section 59, in the absence of attestation, no mortgage has been effected. As regards the case of Nitye Gopal Sircar v. Nagendra Nath Mitter (1885) I.L.R., 11 Cal., 429, that was the case of a will as to which the third clause of Section 50 of the Indian Succession Act provides that it shall be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the will or have seen some other person sign the will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person.' So that attestation, either of the execution or of the admission of execution by the testator, is expressly made sufficient for the purpose. That, however, does not hold good in the case of a mortgage deed--see Kumari Bibi v. Srinath Roy (1896). 1 C.W.N., 81, and Tofaluddi Peada v. Mahar Ali Shaha (1898) Ante, p. 78.
4. It was argued for the respondents that even if that was so it did not render the security bond invalid, as it is not a mortgage within the meaning of Section 58 of the Transfer of Property Act. This argument is not sound. The document was clearly intended to transfer to the Registrar of this Court for the benefit of the respondents an interest in the properties specified in the document for the purpose of securing to the extent of Rs. 4,000 a future debt, namely, a judgment-debt that might be created by the order of Her Majesty in Council; and thus the document became a mortgage as defined by Section 58 of the Act. It was next contended for the respondents that even if the bond was a mortgage bond, as the Court by admitting the appeal to Her Majesty in Council under Section 603 of the Code of Civil Procedure must be taken to have held that the security given was valid, it was not open to the appellant to question the validity of the mortgage bond in these proceedings. We do not consider this contention to be well founded. The surety was not a party to the appeal nor to the proceeding by which the appeal was admitted. It was the appellant to Her Majesty in Council and not the surety, who put forward the security bond, and the surety cannot be held to be bound by the order admitting the appeal so as to be precluded from showing that the mortgage bond is invalid in law. In other words, as he was not a party to the order of this Court, he ought not to be taken to be bound by it.
5. It was lastly contended by the learned Vakil for the respondents that, as by Section 610 of the Code of Civil Procedure the order of Her Majesty in Council regarding the respondents' costs can be executed against the surety to the extent to which be has rendered himself liable, in the same manner as it may be executed against the appellant to the Privy Council, the execution can proceed against the surety even if the mortgage bond be invalid. We are unable to accept this contention as correct. The section provides that execution of the order for costs may proceed against a surety to the extent to which he has made himself liable. Now what is the extent to which the surety in this case has made himself liable? He has not made himself personally liable at all; for the mortgage deed contains no covenant to pay. The only extent to which he intended to make himself liable was by way of a mortgage on certain property which turns out not to have been effected owing to the mortgage deed not being attested as required by Section 59 of the Transfer of Property Act. He undertook no other liability. We feel constrained, therefore, to hold that the security bond was invalid and did not create any liability in the surety which can be enforced. The order of the Court below allowing execution to proceed against the surety must consequently be discharged. We give no costs of the appeal.