1. This appeal arises out of a suit brought by the plaintiff, Maharaj Bahadur Singh, for an account. The plaintiff attained his majority on 20th September 1901, During his minority, one Khettra Nath Ray had been the manager of his property appointed by the District Judge of Murshidabad under Act XL of 1858. Upon that appointment defendant No. 2, Radhika Nund Mahenta Thakur, had entered into a security bond in favour of the District Judge by which he became personally responsible and also hypothecated certain immoveable property as security for the faithful discharge by Khetra Nath Ray of his duties as manager. Upon the plaintiff attaining majority, he took over the estate and called upon Khettra Nath Ray to render an account of his management. He also appointed Khettra Nath Ray as manager on a fixed salary. This office Khettra Nath Ray held for some 21/2 years, when the plaintiff terminated the engagement. During that period, Khettra Nath Ray appears to have admitted his liability for various amounts and to have made payments from time to time amounting in all to Rs. 5,252-12-0. This was far short of what the plaintiff alleged to be due from him. Accordingly, on 14th September 1904, the plaintiff took an assignment of the security bond from the District Judge and on the 16th September 1904 filed the suit against Khettra Nath Ray and Radhika Nund Mohunt Thakur as his surety, claiming an account and a decree against both defendants for so much as might be found due and also for enforcing the security bond against the property hypothecated. On the 22nd December 1904, defendant No. 1 filed his written statement. On 8th. September 1905, an ex parte decree was passed against both defendants. Towards the close of that year, defendant No. 1 applied for re-hearing but his application was rejected. On 6th December 1905, a Commissioner was appointed to take the accounts and he actually commenced the examination. In April 1906, defendant No. 1 died and his heirs, the present defendants Nos. 1--5, were substituted in his place. The defendant No. 2 (now No. 6) then applied to have the ex parte decree against him set aside. This was granted, and for some reason, which does not clearly appear, the decree against Khettra Nath Ray was also set aside, and the whole matter was heard afresh. The result was that a preliminary decree for accounts was passed against defendants Nos. 1--5 while the suit was dismissed against the defendant No. 6 on the ground that as surety he had been discharged. On appeal to the District Judge, it was held that no suit for account would lie against the heirs of the manager. The District Judge was of opinion that the surety was not discharged but as the suit failed against the heirs of Khettra Nath Ray, he dismissed it also against the surety. The plaintiff has appealed to this Court.
2. We are clearly of opinion that in holding that no suit lay against the heirs of Khettra Nath Ray the District Judge was in error. He appears to have considered himself bound by the decision of the Allahabad High Court in Manmotho Nath Bose Mullick v. Basanto Kumar Boss Mullick 22 A. 332; A.W.N. (1900) 98. The distinction is a somewhat fine one between a suit against representatives for the rendition of accounts, and a suit against them to recover what may be found due from the estate of the deceased on taking an account. With all respect to the learned Judges who decided that case, we have doubts as to its correctness. Sections 19 and 20 of Act XL of 1858 and Sections 36 and 37 of Act VIII of 1890 appear to us to indicate that such a suit would lie. In this case, however, the circumstances are entirely different. The learned District Judge has overlooked the all important fact that the present suit was originally brought not against representatives but against the defaulting manager himself. He filed his written statement and the original decree was passed against him. And his application to have the matter re-heard was refused. It was only by the accident of his co-defendants coming in under Section 108, Civil Procedure Code, 1882, that that decree could be set aside. It is not disputed that the estate of Khettra Nath Ray is liable for any sum which he may be found to have been owing or liable to make good at the date of his death. We know of no authority for the proposition that a suit filed against a guardian under such circumstances could fail by reason of his death pending the hearing. The case of Kumeda Charan Bala v. Asutosh Chattopadhya 16 C.L.J. 282; 17 C.W.N. 5; 16 Ind. Cas. 742 which was referred to in the course of the argument, is distinguishable from the present for the reasons above mentioned and also because it was a suit against the representatives of an agent and not of a guardian and, therefore, outside the purview of the Acts of 1858 and 1890. For these reasons, we think that the suit must certainly proceed against defendants Nos. 1--5.
3. The next question is as to the liability of defendant No. 6 as surety. The learned Pleader for the plaintiff-appellant conceded that as the security bond was not registered, it could not affect the immoveable property, which it purported to charge. He said that his client would be content if the personal liability of this defendant under the bond were established. To such a decree, we think, he is entitled. It was argued for the defendant No. 6, first, that the District Judge had no power under Act XL of 1858 to take such a bond, secondly, that the assignment of the bond by the District Judge to the plaintiff was invalid, and thirdly that the surety had been discharged. We think that there is no force whatever in the first and second contentions, such bonds were constantly taken before the Act of 1890 came into force.
4. The earlier Act, it is true, contained no express provisions for such bonds, but that would not make them illegal or invalid. In Amar Nath v. Thakurdas 5 A. 248; A.W.N. (1883) 12 the Court declined to say that the District Judge was incompetent to take such a bond. The doubt that was expressed in that case as to the District Judge's power to assign has been removed by Section 35 of Act VIII of 1890, coupled with Section 2(2) of the same Act.
5. The question of the discharge of the surety is not so absolutely free from doubt. It was argued that by the plaintiff having given time to Khettra Nath Ray, the surety had been discharged under Section 135 of the Indian Contract Act, or that in any event the surety had been discharged under Section 139 by the creditor's act or omission impairing the surety's eventual remedy. This raises a mixed question of law and fact. The District Judge, whose findings of fact we must accept in second appeal, has found that though time was allowed, there was no such binding contract as is required by Section 135. That is sufficient to dispose of that contention but we may mention that as the finding of the District Judge was not very explicit, we looked at the evidence given in the case to see if it justified that conclusion. The defendants did not examine themselves on the point, nor did they seek to obtain from the plaintiff, whom they examined as their own witness, proof of any such contract. The only circumstance from which such a contract could be inferred was the fact that the plaintiff employed Khetra Nath Ray as his manager. It appears, however, that during the whole period of such management, he was being continually pressed both for a proper account and for payment of what he admitted or was found to be due. The finding, therefore, of the District Judge that the conduct of the plaintiff amounted to a mere forbearance to sue, appears to be justified not only by the facts found, but by the legal inference to be drawn from such facts. Mere forbearance would not (Section 137) discharge the surety. Nor has it been found that plaintiff did or omitted to do anything which would impair the surety's eventual remedy against the principal debtor. The plaintiff, having pressed Khettra Nath Ray for account and payment for a considerable time, eventually filed the present suit within the period of limitation. He did nothing which was in any way inconsistent with the rights of the surety. We accordingly agree with the District Judge that the surety was not discharged.
6. The result is that the appeal must be allowed. The decree of the District Judge dismissing the suit is set aside and the preliminary decree of the first Court against defendants Nos. 1--5 is restored. There must also be a decree in the plaintiff's favour against defendant No. 6 making him liable for such amount, if any, as may be found due to the plaintiff from defendants Nos. 1--5 as representing the estate of Khettra Nath Ray. The costs of the several parties of this appeal and the lower Appellate Court will be costs in the case.