1. The decree-holder, appellant in this appeal, obtained a decree against the firm Kailas Chandra Sashi Bhusan Roy on 13th August 1929. The application for execution of the decree so passed in favour of the decree-holder was made on 15th November 1930. On 19th December 1930, the judgment-debtor Sashi Bhusan Roy was brought under arrest. Sashi Bhusan Roy and he filed a petition of objection under Section 47, Civil P.C.
2. It appears from the order recorded in the order sheet of the Execution case on 19th December 1930, that the judgment-debtor Sashi Bhusan Roy was released on his furnishing security 'to the extent of the dues, for surrendering himself to Court if this Section 47 petition fails.' The security was in due course furnished, and on 20th December 1930, the security bond filed by the respondent in this appeal, Nabin Chandra Chowdhuri, was accepted, and the judgment-debtor Sashi Bhusan Roy was released. The application under Section 47 of the Code came to be dismissed by the Executing Court on 21st April 1931. In the intervening period, i.e. the period from 20th December 1930 to 21st April 1931, an attempt was made by the judgment-debtor Sashi Bhusan Roy to pay up the decretal dues in instalments. An attempt was also made with the consent of the decree-holder for production of a surety, so far as the satisfaction of the decretal dues by instalments was concerned. These attempts on the part of the judgment-debtor however failed. On 28th April 1930, after the dismissal of the application under Section 47 of the Code, there was an application filed in Court by the judgment-debtor containing the definite statement that he was surrendering himself and was going to make a payment of Rs. 50 towards the decretal dues. This amount of Rs. 50 was received by the pleader for the decree-holder on that very date.
3. It appears also from the order recorded on that date, 28th April 1930, that the payment of Rs. 50 was brought to the notice of the Court and the Court also took, notice of the fact that the judgment-debtor was trying to pay off the decretal debt in instalments. The prayer for instalments however could not be allowed in the execution case. The order recorded by the Court further shows that an opportunity was given to the judgment-debtor for payment of Rs. 100 within 20th May 1931: the execution case was to be put on the said date for orders. The pleader for the judgment-debtor Sashi Bhusan Roy undertook to produce the judgment-debtor in Court on that date, viz., 20th May 1931, on his failure to pay the money. What happened on 28th April was this: On 23rd May 1931 notice was issued on Nabin Chandra Chowdhury, the surety respondent in this appeal, to produce the judgment-debtor by 30th May 1931, or to deposit the decretal dues in Court, in terms of the bond executed by this surety Nabin Chandra Chowdhury, on 19th December 1930. The surety showed cause before the Court executing the decree, and raised objections to the decree-holder being permitted to proceed against him as surety, in the matter of the satisfaction of the decretal dues. The objections were in due course heard and disposed of by the Court executing the decree and according to the learned Munsif, there were no grounds on which the objections raised by the surety could be allowed. According to the Munsif, the judgment-debtor's production in Court on 28th April 1931 did not appear to have been caused by the surety and therefore the surety's liability continued under the surety bond.
4. On appeal by the surety, the respondent in this Court, the decision of the Munsif, disallowing the objections raised by the surety was set aside. According to the learned Subordinate Judge, the judgment-debtor Sashi Bhusan Roy surrendered himself after the disposal of the case under Section 47 of the Code, and in that view of the matter it was held that the liability of the surety in the matter of the satisfaction of the decree as mentioned in the surety bond ceased after the judgment-debtor had surrendered on 28th April 1931. The facts and circumstances of the case have been set out in some detail in the previous part of our judgment, and it appears to us that in view of the fact and in the circumstance that the judgment-debtor had on 28th April 1931, that is, after the disposal of the application under Section 47 of the Code on 21st April 1931, surrendered before the Court, there was no further liability attaching to the surety in the matter of the satisfaction of the decretal debt. The material portion of the surety bond is to this effect:
I stand as surety for the said Sashi Bhusan Roy and promise and agree that if the said objection case under Section 47, Civil P.C, be not admitted, I shall remain bound to make the said Sashi Bhusan Roy appear in Court, when called upon by the Court. If I do not make the said Sushi Bhusan Roy appear in Court when directed by it, the decree-holder will in pursuance of the order of the Court, be able to realize the said amount from me. If I do not pay easily, he will be able to realize the same by the execution of this decree from my moveable and immovable properties and person.
5. Regard being had to the definite finding arrived at by the Courts below that the judgment-debtor did in point of fact surrender himself after the disposal of the case under Section 47 of the Code, and in view of the circumstance to which reference has been made already, that there was payment by the judgment-debtor of the amount of Rs. 50 which was received by the decree-holder, and of which payment notice was taken by the executing Court, and regard being also had to the fact that on 28th April 1931, the responsibility of the appearance of the judgment-debtor in Court was allowed to be taken by the pleader representing the judgment, debtor and no responsibility whatsoever on the part of the surety was thought of on that date by the Court or by the decree-holder, we are wholly in agreement with the order passed by the Court of appeal below, that there was no liability attaching to the surety after what happened in Court on 28th April 1931. Some reliance has been placed by the learned advocate for the decree-holder appellant on the decision of the learned Chief Justice in the case of Jia Bai v. Joharmull Bothra AIR 1932 Cal 853, holding that there was no broad rule of law that a surety who had guaranteed payment of an amount decreed against the judgment-debtor was discharged from liability by reason of any arrangement for postponed payment or payment by instalments. The facts and circumstances of the case before us do not call for the application of the rule laid down by the learned Chief. Justice in the case above referred to. It appears to us that the nearest application of any rule of law to the facts of the case before us is that of the rule contained in Section 135, Contract Act, relating to the discharge of a surety when the creditor makes a composition with or promises to give time to the principal debtor without the assent of the surety. It cannot be said that the rule laid down in that section of the Contract Act can have any strict application to the case before us. But as we have said: there would be some sort of similarity to the provisions of the section in view of the facts and circumstances of this case, to which reference has been made in our judgment. In the result the appeal fails and is dismissed. As there is no appearance on behalf of the respondent we make no order as to costs in this appeal.
M.C. Ghose, J.
6. I agree.