1. The appellant obtained a decree for money for Rs. 7191 against one Mannalal Hanumanbux from this Court in its original jurisdiction on 11th January 1935. That decree was transferred to Sibsagar for execution, and on 28th January 1935 the decree-holder applied for execution of the same in the Court of the Subordinate Judge of the place. His application for execution was numbered 6 of 1935. The mode in which execution was sought for was by the attachment and sale of the judgment-debtor's moveables specified in Schedule Ka and his immovable properties specified in Schedule Kha attached to the application for execution. In this appeal, we are concerned with his moveables stored in a shop situated in a tea garden, named the Morongi gardens. Those moveables were actually attached by an officer of the Court on 1st February 1935. They were not however removed to the Court house but were eventually left with R.P. Lawson, the manager of the said tea garden, the latter executing a security bond by which he undertook to produce them in Court when required. The form and the terms of this bond will have to be considered in deciding the merits of the controversy.
2. To the bond Lawson added a footnote to the effect that 182 maunds of paddy found in the attached shop were the property of the Tea Estate and 6 mds. the property of its labourers. After the attachment of the goods, two claims in respect thereto were preferred being Nos. 7 and 10 of 1935, one by Lawson and the other by a person named Chunilal Agarwalla. They were allowed by an ex parte order on 27th March 1935. On revision at the instance of the decree-holder, the order allowing the claims was set aside on 26th November 1935 by this Court and the cases were remanded for retrial. On retrial, the said claim cases were dismissed on 30th July 1936. On 24th August 1936, the decree-holder applied to the executing Court for an order on Lawson to produce the goods in Court and on that application the Court issued, on 6th October 1936, a notice on Lawson to produce them in Court. Lawson failed to do so and as an explanation for non-production stated that he had made them over to the claimants after 27th March 1935 when the order allowing the claims was made and before the High Court reversed the same. The Court below has accepted the explanation and has held that he is no longer liable on his bond as he had acted bona fide in making the articles over to others. This is the order which is challenged in the appeal by the decree-holder.
3. A preliminary objection has been taken on behalf of Lawson that the appeal is incompetent. The order under appeal is also sought to be supported on the reasons given by the Court below and also on an additional ground that the decree-holder can enforce the bond only by a properly constituted suit. We will first take up the preliminary objection. It appears from the record that the goods in the shop were attached on 1st February 1935 and the shop rooms were locked up by the attaching officer. On 2nd February 1935 Lawson made an application to the Court for removing the padlocks. He stated thereon that the stoppage of the business of the shop meant inconvenience to the coolies of the garden. On this application the Court recorded an order on the same date that the padlocks would be removed on Lawson furnishing security for an amount equal to the value of the articles in the shop and such value was to be estimated by the Nazir. The Nazir was directed to take proper security. On 19th February 1935 Law son executed the security bond. In the bond he states that he had received the goods from the Assistant Nazir and he engages to keep the said properties in his custody till he gets an order from the Court for transfer of the same. The bond further runs thus:
On receiving the orders I shall make over the said properties to the officer at the Golaghat Katehary, deputed for the purpose or, if it is so ordered, I shall return them to the judgment-debtor. If I fail to make over the properties to the officer deputed for the purpose and thereby cause loss to him or the Government or the creditor, then I shall be bound to make good the price of the said properties as compensation the value whereof is assessed at Rs. 1537. And I do further promise that the said money may be realized from mo by way of arrears of rent of land.
The bond is signed thus:
Surety E.F. Lawson,
Manager T. Co. Ltd.
In support of the preliminary objection, the respondent's advocate, Mr. Bose, says that by this bond Lawson did not guarantee the performance of any obligation which was primarily on another person, but he was undertaking upon himself an original liability to keep in custody the goods and produce them when required in Court. The word 'surety' above Lawson's signature, he says, has no meaning. The case according to Mr. Bose, does not come within Section 145, Civil P.C., and that even if Lawson was a surety within the meaning of that Section the case does not come within any of Clauses (a), (b) and (c) of that Section, and so Lawson cannot be said for the purpose of appeal, to be the representative of a party to the suit. Mr. Guha for the appellant urges that Lawson is a surety and the case comes either within Clause (b) or Clause (c) of Section 145 and that the appeal is competent. The learned advocates have cited a number of cases in support of their respective contentions. Those cited by Mr. Basu are Konimareddi v. Veerayya Tata (1919) 6 A.I.R. Mad. 649, Rajah of Venkatagiri v. Sura Krishna (1920) 7 A.I.R. Mad. 321, and Sankunni Variar v. Vasudevan Nambudripad (1926) 13 A.I.R. Mad. 1005, and those cited by Mr. Guha are Shakir Hussain v. Chandulal : AIR1931All567 and Genda Mal v. Sukhdarsan Lal : AIR1936All555 . No case of our Court has been cited and the precedents of the other High Courts have taken divergent views. In the Full Bench of the Allahabad High Court, Shakir Hussain v. Chandulal : AIR1931All567 , Mukherji J. stated without giving any reason that the custodian is a surety within Section 145, Civil P.C., and Sulaiman C.J. in the same case said that a custodian by his undertaking became liable as a surety for the restitution of the property. In the later case in Genda Mal v. Sukhdarsan Lal : AIR1936All555 , Sulaiman C.J. stated that the word 'surety' used in Section 145 has been used in a 'wider sense' and that the Section 'speaks of a person who has become liable as surety and does not say who is a surety himself. The Madras High Court has taken different views at different times. In this state of the precedents of the other High Courts, which are entitled to great respect but not binding on us, it is necessary to examine the statutory provisions in detail in the first instance. We do not see any point when it is said that Section 145 speaks of a person who has become liable as surety and not of a person who is a surety himself. The structure of the Section makes it clear that the person sought to be proceeded against in execution proceedings under that Section must be a surety. Further, his liability as surety must be for the performance of the obligations specified in the three clauses of the Section. Nor can we bring ourselves to agree with the observations that the word 'surety' used in Section 145 has a 'wider meaning,' a phrase which implies that the person may be one who is not a surety at all in its legal sense. The conception of a surety is a clear one. A surety is one who takes upon himself, and guarantees the performance of, an obligation which rests primarily upon another. His obligation is an accessory one. In our judgment, Section 145 has no application unless the person sought to be proceeded against has taken upon himself the liability of another, it need not be the liability of either the judgment-debtor or the decree-holder but it may be the liability of an officer of the Court charged with the conduct of the execution proceedings. It is however essential that he had undertaken to discharge another's obligations.
4. Attachment of moveables of the kind we have here, has to be made under Order 21, Rule 43, Civil P.C. The goods have to be actually seized by the officer of the Court to whom the writ has been given. As soon as he seizes the goods, the attachment is complete, and at once an obligation on that officer is imposed by law. He must keep the same in his custody or in the custody of his subordinate. This obligation means that he must keep it safe and produce it in Court for being made available for sale, for on sale of such property the Court has to deliver the same physically to the purchaser (Order 21, Rule 43, Order 21-A, Rule 4 and Order 21, Rule 79). Order 21-A, Rule 3, which has been enacted into law in 1933, gives the discretion to the attaching officer to leave the attached property in the custody of another person on taking security from him for its production in Court. When the attaching officer exercises his discretion under Rule 3 of Order 21-A and leaves the property in the custody of a custodian, the latter undertakes to perform the duty (i.e. to produce the attached goods in Court) which the law had cast upon the Court's officer who had attached the goods. The obligation of the custodian is accordingly in such a case not an original but an accessory one. This obligation has to be enforced in the execution proceedings (Order 21-A, Rule 11). This, in our judgment, is the effect of the statutory provisions. But in the case we have before us, the attaching officer did not at all act under Order 21-A, Rule 3. He did not in leaving the goods in the custody of Lawson exercise his discretion. He had in fact no discretion in the matter. The Court intervened after the attachment and by an order directed the goods to be delivered to Lawson on his furnishing security. When the goods were delivered to Lawson by the Assistant Nazir in pursuance of the said order of the Court, the normal liability of the attaching officer (the Assistant Nazir) to keep safe the attached, goods and to produce them in Court was discharged and the responsibility was transferred from his shoulders to that of Lawson and Lawson's liability under the bond could not accordingly be regarded as an accessory one. In the special circumstances of this case, Law-son, the custodian, was not a surety and Section 145 of the Code has no application.
5. In this view of the case, it is not necessary to consider the question whether a. custodian to whom goods have been delivered by the attaching officer in the exercise of his discretion (not in pursuance of an order of the Court) comes within any of the three clauses of Section 145. Mukherji J. in the Full Bench of the Allahabad High Court, Shakir Hussain v. Chandulal : AIR1931All567 , thought that such a custodian came within Clause (c), but Sulaiman C.J. in the same case said that he came within Clause (b), the word 'restitution' meaning restoration, a view which he reiterated in Genda Mal v. Sukhdarsan Lal : AIR1936All555 . There are dissents to this view; it has been said that Clause (b) contemplates those cases only where on the reversal of the decree the decree-holder has to restore the property taken by him in execution of the decree subsequently reversed. It is, as we have stated above, unnecessary to consider the point in this case, as we have held that in the circumstances of this case Lawson is not a surety, or to follow the language of Section 145, 'has not become liable as a surety.' We hold accordingly that the appeal is incompetent, but that does not mean that no relief can be given to the decree-holder, for, we can treat the memorandum of appeal as an application in revision if the decree-holder has merit in his favour.
6. On the merits we find no answer to the appellant's claim. We do not see any point in the contention that Lawson's liability can only be enforced by a suit. The security bond was not given in favour of any named person. It does not purport to be in favour of the Presiding Judge or even in favour of the Court. Order 21-A, Rule 11 expressly says that the security can be realized by an order in the execution proceedings. Even if that Rule had not been there, the same would have been the procedure on the principles formulated by the Judicial Committee of the Privy Council in Raj Raghubir Singh v. Jai Indra Bahadur (1919) 6 A.I.R. P.C. 55. The last line in the bond does not, in our judgment, limit the remedy to one particular form of process. We do not see also any point in Lawson's defence that he made over the goods under the advice of his lawyer as soon as the claim cases Nos. 7 and 10 were allowed ex parte. His story seems to us to be improbable in view of what he stated in his application to Court wherein he prayed for the removal of the padlocks. Even if his story be a true one, he cannot escape liability, for he had on the terms of the bond no business to make the goods over to any one without an order of the Court. We are fortified in the view we are taking by the decision in Genda Mal v. Sukhdarsan Lal : AIR1936All555 .
7. The learned Judge noticed the fact that on the terms of the bond Lawson could deliver the goods only under the order of the Court but he exonerated him from liability on extraneous grounds. We think that in these circumstances the case comes within Section 115, Civil P.C. We accordingly set aside the order of the learned District Judge and send the case back to him so that further proceedings may be taken against Lawson in execution for realizing from him the amount mentioned in the bond. The decree-holder must get the costs of the lower Court and of this Court, the hearing fee in this Court being assessed at two gold mohurs. The learned advocate appearing for the decree-holder puts in today the deficit court-fee of Rs. 5 in view of the memorandum of appeal being treated as an application in revision.