1. This was an application to recover by execution the amount of security given for the costs of an appeal to the Privy Council, under the provisions of Sections 602 and 603 of the Code of Civil Procedure. The Court below has held that the execution is barred as against the sureties. The view taken by the Court below, we think confunds two things that are wholly distinct, that is, the decree of the Privy Council, and the security bond. We think, however, that it is not necessary for us to determine whether the recovery of the money secured by the bond is or is not barred, so far as that recovery depends upon the execution proceedings sought to be had in the Court below, because the order appealed against can be supported upon a ground which has been taken by the respondent for the purpose of supporting that order refusing execution. The respondent contends that the proper remedy of the decree-holder is by a separate suit, and that he is not entitled to recover the amount secured by the bond in the execution department of the Court which has charge of the execution of the Privy Council decree. We are not aware that the question thus raised has ever been decided by this Court. It has been decided by a Full Bench of the Allahabad High Court in the case of Bans Bahadur Singh v. Mughla Begum I.L.R. 2 All. 604 and it was there decided by a majority of three Judges as against two, that execution could be had in order to recover the amount of the security bond. This view has been dissented from in a case, decided by the Madras High Court of Balaji v. Ramasami I.L.R. 7 Mad. 284.
2. Section 253 of the Civil Procedure Code provides as follows: '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 a decree may be executed against a defendant.' Now in the present case it is clear that the persons against whom execution is sought did not become surety before the passing of the decree in the original suit; and, therefore, the express language of Section 253 is not applicable. But it is contended that Section 610 extends the provisions of Section 253 to the case of a surety bond like the present. That section provides as follows: Whoever desires to enforce, or to obtain execution of any order of Her Majesty in Council, shall apply by petition, accompanied by a certified copy of the decree or order made in appeal and sought to be enforced or executed, to the Court from which the appeal to Her Majesty was preferred. Such Court shall transmit the order of Her Majesty to the Court which made the first decree appealed from, or to such other Court as Her Majesty by her said order may direct, and shall (upon the application of either party) give such directions as may be required for the enforcement or execution of the same; and the Court to which the said order is so transmitted shall enforce or execute it accordingly, in the manner and according to the rules applicable to the execution of its original decrees.' It is said that Section 253 contains a rule applicable to the execution of original decrees within the meaning of this provision. We do not think so. We agree with the observations of Mr. Justice Spankie, at page 615 of the Allahabad report, that this argument mixes up liability and machinery, and treats them as one and the same. We think it confounds liability, which is created by a provision of substantive law which happens to have been inserted in the Code, and procedure, which is adjective law. We may further observe that what the section provides for is the execution of an order of Her Majesty in Council. This is the legal case for which the Legislature proceeds to lay down rules; and in Section 610 this is a different case from the enforcement of; a surety bond which cannot be brought within the purview of an order of Her Majesty in Council. We think, therefore, with all deference to the majority of the Judges of the Allahabad Court, that Section 610 cannot be construed so as to extend the provisions of Section 253 to a ease not expressly provided for by the Legislature.
3. We think, therefore, that a surety bond of this kind cannot be summarily enforced by execution.
4. The appeal fails and is dismissed but without costs.