1. This appeal arises out of proceedings in execution of a decree. The respondents obtained a decree against the judgment-debtor Jyoti Prakash and put it into execution pending an appeal preferred by Jyoti Prakash against the decree. Upon an application made by the latter for stay of execution-proceedings, this Court directed proceedings to be stayed upon Jyoti Prakash furnishing security to the satisfaction of the Court below. Thereupon a security-bond was executed by Jyoti Prakash on the 6th May, 1915. The appeal was ultimately dismissed. The respondents having applied for execution of the decree by attachment and sale of the properties covered by the security bond which had been executed by Jyoti Prakash the sons and wife of Jyoti Prakash instituted a suit or declaration that the properties were not liable to be sold in execution of the decree obtained by the respondents against their father and pending that suit, the sons of the appellant obtained an injunction restraining the respondents from executing the decree until the disposal of the suit. The suit succeeded in the Court of first instance, but on appeal to this Court, the decree of the Court below was set aside and the suit brought by the sons and wife of Jyoti Prakash was dismissed. After the disposal of that suit, the respondents put into execution the decree against the appellant. One of the objections raised was that the properties covered by the security-bond could not be proceeded against unless a suit was instituted under Section 67 of the Transfer of Property Act, as the security-bond created a charge upon the properties in favour of the respondents. There was another objection raised, namely, that the present application was barred by limitation, because it was made more than three years after the date of the last application. These objections were overruled by the Court below and the judgment-debtor has appealed to this Court.
2. The first question for consideration is whether the decree-holders can execute the decree against the properties comprised in the security-bond without instituting a suit under Section 67 of the Transfer of Property Act. That question has been considered in several cases. In the case of Shyam Sundar Lal v. Bajpai Jainarayan (1903) 30 Cal. 1060, it was held that the relationship between a decree-holder and a judgment-debtor who has executed a security-bond under Section 545, Clause (c) of the Civil Procedure Code, mortgaging certain proper ties for the due performance of the decree or order that may ultimately be passed by the Appellate Court, is not that of mortgagee and mortgagor, and, in the event of the appeal being dismissed, the decree-holder is entitled to realise his decretal money by sale of the properties given in security without instituting a suit under Section 67 of the Transfer of Property Act. This case has been followed by the Madras High Court in the case of Subramanian Ghettiar v. Raja of Ramnad (1917) 41 Mad. 327. In a recent case decided by the Judicial Committee Raj liaghubar Singh v. Jai Indra Bahadur Singh A.I.R. (1919) P.C. 55, where the security-bond was executed pending an appeal, their Lordships observed as follows : 'For a proceeding under the Transfer of Property Act there must be a mortgagor and a mortgagee. Their Lordships have to examine whether in this case there is any mortgagee, any person to whom the security was given. Now, no person is mentioned in the instrument. It recites the decree that the widow has been ordered to furnish security, and then the declarants furnish security by hypothecating their property. The form of an instrument such as this, in the absence of any special form being provided by the Code, and there is no suggestion that there was any such form provided under the Code) then in force, must vary according to the practice of the Court.' Then, after referring to the practice of the High Court at Calcutta, that 'in instruments of this nature, the parties bind themselves to some named officer of the Court, and that if the instrument has to be put in suit either the officer sues, or he under order of the Court assigns the security to the party who wishes to avail himself of it, but this instrument does not purport to bind the sureties to any individual officer or to any one,' their Lordships observed. It is suggested that they are bound to the Court. But the Court is not a judicial person. It cannot be sued. It cannot take property, and as it cannot take property, it cannot assign it. It remains, therefore, that there is an unquestioned liability and there must be same mode of enforcing it, and that the only mode of enforcing it must be by the Court making an order in the suit upon an application to which the sureties are parties, that the property charged be sold unless before a day named the sureties find the money. This form of procedure is that to which the High Court of Allahabad gave its sanction in the case of Janki Kuar v. Sarup Rani (1896) 17 All. 99.
3. In that case the learned Judges of the Allahabad High Court held that where in an appeal security has been given to the Appellate Court for the due performance of such decree as it may pass, the decree-holder may enforce such security in the manner provided for by Section 253 of the Civil Procedure Code. The present Code of Civil Procedure provides for a form of security-bond. See Order XLI, App. G, Nos. 2, 3. It is true that the security-bond in the present case was executed after the present Code had come into force, but the security-bond appears to have been similar in form to that which was dealt with in the case of Shyam Sundur Lal v. Bajpai Jainarayan (1882) 21 Ch. D. 9. The bond is not addressed to any one but it is simply headed 'Sub-Judge's Court.' The material portion of the bond, after reciting-the suit and the appeal and the fact that the Court had ordered the execution to be stayed on security being furnished, runs, thus : 'Accordingly I keep following, properties owned and held by me as security and promise that until the final disposal of the said appeal I shall in no way be competent to encumber or transfer-those properties in any way. If the decree in the said original suit be upheld by the Appellate Court, then the decree-holders will be competent to realise their dues, from the properties kept as security and neither myself, nor any heir, nor representatives will be competent to raise any; objection thereto, and if any be raised the, same will be rejected.' This security bond, as we have already said, is similar to the security-bond in the case of Shyam Sundar Lal (1882) 21 Ch. D. 9 referred to above, and it is almost similar to the security-bond in, the case of Raj Baghubar Singh v. Jai Indra Bahadur Singh A.I.R. (1919) P.C. 55.
4. The learned Vakil for the appellant relies upon the case of Tokhan Singh v. Girwar Singh (1905) 35 Cal. 494 where it was held that the effect of the security-bond in that case was to create a mortgage and that the properties could not be sold without instituting a suit under Section 67 of the Transfer of Property Act. In that case, the Court held, upon a consideration of the security-bond, that there was a transfer of interest in the immovable properties and that there was a mortgage under Section 67 of the Transfer of Property Act. The learned Judges distinguished the case of Shyam Sundar Lal (1882) 21 Ch. D. 9 on the ground that the security-bond, which was before the Court in the latter case, did not create a mortgage, because it did not purport to transfer the interest to any person. The learned Judges of the Madras High Court pointed out in the case of Subramanian Chettiar v. Raja of Ramnad (1919) 35 C.L.J. 75 referred to above, that, 'it would be a most mischievous state of law if such a thing (a suit under Section 67) were necessary and it would fetter the discretion of the Court in accepting immovable property as security for the execution of the decree.' Having regard to the decisions cited above, we are of opinion that it is not necessary to institute a suit on the security-bond and the properties could be proceeded against in execution.
5. It is contended, however, by the learned vakil for the appellant that in the judgment of this Court in the suit instituted by the sons of the judgment-debtor it was held that there was a charge created upon the property. We do not think that there is anything in the judgment of Mr. Justice Richardson which goes to show that in his opinion the security-bond could not be enforced except by instituting a suit. On the contrary, the observations of Mr. Justice Richardson go to show that it could be done by way of execution. The Learned Judge says 'Thereupon the decree against Jyoti being a subsisting decree which has been put in course of execution, there will be nothing to prevent the security-bond from being enforced against the whole co-parcenary interest of the plaintiffs and Jyoti.' Reliance has been placed upon the observations of Mr. Justice Shamsul Huda which are these: 'I agree with my learned brother in holding 'that by the security-bond, a charge was 'created on the family property to discharge 'an antecedent debt not tainted with 'immorality and that it is enforceable 'against the plaintiffs.' We do not think that the learned Judge meant to find that there was any charge in the sense that it could not be enforced, except by a suit. The first contention, therefore, must be overruled.
6. The second contention is that the application is barred by limitation. But in the first place, the period during which the execution proceedings were stayed (an injunction having been obtained by the judgment-debtor) should be deducted and deducting the said period, the application was in time. In the next place, although the application was made on the 23rd February, 1920, an application for amendment was made and allowed on the 7th July, 1920. Order XXI, B. 17, C.P.C., provides that where an application for amendment is made and allowed if shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.
7. In these circumstances the appeall fails and must be dismissed with costs.