1. In this case it appears that one Elie Goldberg was the defendant with two others in a suit brought by the mortgagee upon a covenant in an English mortgage for Rs. 15,000 plus interest. In appears that a certain colliery property was the mortgaged subject and the claimant sued for a personal judgment for Rs. 29,508-8-0. The suit was filed a few days ago, namely, on 13th August 1928. On 14th August, the plaintiff applied for the arrest of the defendant, Elie Goldberg, under Order 38, Rule 1, on the ground that he was about to leave the jurisdiction, with intent to delay the plaintiff or to avoid the process of the Court and to obstruct and defeat the execution of any decree that might be passed against him.
2. Now the plaintiff got an order ex parte in the form of a warrant directed to the Sheriff and commanding him:
to demand and receive from Elie Goldberg a sum of Rs. 10,000 as sufficient to satisfy the plaintiff's claim in this suit and, unless the said sum of Rs. 10,000 is forthwith delivered to him by or on behalf of the said defendant Elie Goldberg, to take the said defendant, Elio Goldberg, into custody and to bring him, before this Court, in order that he may show cause why he should not furnish security to the extent of Rs. 10,000 for his personal appearance before this Court whenever called upon to do so until the said suit shall be fully and finally disposed of and until satisfaction of any decree that may be passed against him in this suit.
3. Now it will be observed that the first portion of that warrant is merely to say that if, when the Sheriff arrests the man, the man hands over Rs. 10,000 that is to be deemed to be payment of the claim and the Sheriff is not to arrest the defendant Elie Goldberg, and that is what is intended by Rule 1, Order 38. In this case, when the Sheriff arrested the man, he did not pay Rs. 10,000 and the Sheriff did not get Rs. 10,000. Consequently the Sheriff arrested him. The second part of this warrant, which is a notice to Belie Goldberg, says in effect that the Sheriff is to take him in custody and bring him before the Court in order that he may show cause why he should not furnish security to the extent of Rs. 10,000 for his personal appearance. I leave aside the other words, which merely indicate that the appearance is to be appearance at any stage of the suit up to the full satisfaction of the claim in execution.
4. In these circumstances, the matter came before the learned Judge on the original side and he has made an order in terms, it is quite true, of Order 38, to the effect that he is to deposit with the Registrar money or property sufficient to answer the claim (which is not for Rs. 10,000 but for Rs. 29,508-8-0) or to give security for his appearance at any time in accordance with Order 38, Rule 2. Order 38, Rule 2 says that the defendant is to furnish security for his appearance and that:
every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.
5. The result is that the effect of the order of the learned Judge is that the man must either deposit Rs. 29,508-8-0 or he is to get a surety who will be responsible that if the man makes default in appearance he will pay the whole amount of the claim. Now that is, it is quite true, what Order 38 authorizes the learned Judge to do. But it is not what by this warrant the defendant was given notice of as the relief that was to be sought against him. I am of opinion that, in these circumstances, it is more correct to hold the plaintiff to the terms of the notice in the warrant which has been issued by the Court. While in no way expressing surprise at the terms of the order of the learned Judge which followed the statute, I am of opinion that in this case the form of the warrant taken out by the plaintiff makes it more proper that the sum should be limited to Rs. 10,000. When one looks at Order 38, Rule 2 and form 2, Appx. F, one does not find it contemplated that the defendant, on failing to make deposit, is to give security for appearance in a particular sum to be fixed by the Judge, but that, if this security takes the form of a bond by a surety, it is to be the whole amount of the decree. If the defendant can give security himself, he will give it for the claim by deposit of money or property. Otherwise he will get some one to go bail for his appearance. That is I think the scheme of O 38. The only thing which is required by form 2 is that the surety engages with the Court that the man shall appear and, if, the man does not appear, the surety promises to be answerable for any judgment that may be made-in the suit. I do not think the form given by the statute is at all the same-thing as the order which in this case sought against the defendants according to the warrant.
6. I would, therefore direct that Elie Goldberg shall be at liberty to give security to the satisfaction of the Registrar on the original side in terms of form No. 2, Appx. F, but limited to the amount of Rs. 10,000, and that until he gives that security he must remain in, jail. There will be no order as to costs.
7. I agree.