1. This is an appeal on behalf of a surety against an order for execution made under Section 145 of the Civil Procedure Code of 1908. The circumstances under which the order in question has been made are of an unusual character and may be briefly stated. The respondent held a decree for money against one Guruditta Mehra. On the 4th February 1910, the decree-holder applied for the issue of a warrant for the arrest of the judgment-debtor. This application was granted, and notices and the warrant were ordered to issue simultaneously. Later in the day, execution was directed to be stayed if the judgment debtor furnished sufficient security. On the next day, the Court recorded that the security-bond had not been filed and directed execution to proceed. The judgment-debtor was arrested that very day and brought before the Court. Thereupon, the following entry was made in the order-sheet: 'The judgment-debtor has been brought after being arrested. The decree-holder's Pleader states that the judgment-debtor's father-in-law, Lakhi Narayan Khanna has deposited with him Government Promissory-notes of the value of Rs. 2,000, as stated in his petition, as security for the decretal amount; so he asks the Court to release the judgment-debtor from custody. The judgment-debtor is released.' On the 25th May 1910, the decree-holder applied for execution against the surety and prayed that the Government securties in his custody might be sold, and if the amount realised thereby proved in. sufficient for the satisfaction of the judgment-debt, execution might be had by other means. Notice was served upon the surety who appeared and contended that he had not stood surety for his son-in-law and that, in any event, proceedings could not be taken against him summarily under section, 145 of the Code. The controversy centred round the question, what had actually happened on the 5th February 1910, when the decree-holder, the arrested judgment-debtor and the alleged surety are said to have been present in Court. The presiding officer had personal knowledge of the incidents which had happened, and he naturally felt considerably embarrassed in the trial of the issue, raised before him. He states this explicitly in his order: he proceeded nevertheless to try the question on evidence and ultimately came to the conclusion that the present appellant had not, as a matter of fact, become a surety. The decree-holder appealed to the Subordinate Judge who has held that the appellant did stand as surety for the satisfaction of the judgment-debt and is liable to be called upon in execution proceedings to pay the money. On the present appeal, two points have been argued by the surety; namely, first, that Section 145 is not applicable, because the appellant did not become surety by an application to the Court or by a bond filed in the proceedings; and secondly, that at any rule, the matter ought not to have been investigated by the Judicial Officer before whom the proceedings of the 5th February 1910 took place.
2. In so far as the first point is concerned, we are of opinion that Section 145 is comprehensive enough to cover a case of this description. The section provides that where any person has become liable as surety for the performance of any decree, the decree may be executed against him to the extent to which he has rendered himself personally liable in the manner provided for execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of Section 47. To bring a case within the scope of Section 145, it must, consequently, be established that the person against whom execution is sought has become liable as surety. The section as framed does not provide that this liability must have accrued upon an application presented to the Court or a security-bond filed in the proceedings. We cannot limit the application of the section to cases where the liability of the surety is undisputed or is a matter of record. If the jurisdiction of the Court under Section 145 is invoked and the applicability of the section is denied, the Court must adjudicate upon the question, find investigate the existence of the circumstances, upon proof whereof the Court can take cognizance of the matter brought before it. If it is established that the person against whom execution is sought, has become liable as surety, the Court must exercise its jurisdiction; if, on the other hand, such fact is not established, the application must be refused. We are not prepared, therefore, to accede to the first contention of the appellant.
3. In so far as the second contention is concerned, it is obviously sound and must prevail. The presiding officer felt himself considerably embarrassed, when he was called upon to try a disputed question of fact of which he had personal knowledge and, in our opinion, he should have declined to hear the matter. As was observed by Sir Barnes Peacock in the case of Harpurshad v. Sheo Dyal 3 I.A. 259 at p. 286 : 26 W.R. 55 it ought to be known and distinctly understood that a Judge cannot, without giving evidence as a witness, import into a case his own knowledge of particular facts. To the same effect is the emphatic declaration of Sir James Colvile in the case of Meethum Bebee v. Bushesr Khan 7 W.R. (P.C.) 27 : 11 M.I.A. 213 at p. 221. No doubt, in the case before us, the learned Munsif stated that he would proceed upon the evidence adduced before him and forget his own recollections of what had happened in Court. But it is extremely undesirable that a Judge should be placed in this predicament; it is impossible for him to forget completely the incidents which have so recently happened before him. In this connection, we may well recall the weighty observations of Sir John Cross in Ex parte Foster 3 Deacon's Rep. 178. 'I purposely abstain in all these cases from looking at the proceedings; for my mind is so constituted that I cannot, in forming my judgment on any matter before me, separate the regular from the irregular evidence.' The second objection mast, therefore, be allowed.
4. The result is that this appeal is decreed, and the orders of the Courts below discharged. We direct that the application of the 25th May 1910 be transferred from the file of the Munsif who tried the case on the 5th February 1910 to that of the District Judge of Burdwan. The District Judge will hear the matter on fresh evidence and the learned Munsif who tried the case on the 5th February 1910 will be examined at the instance of the Court. The parties will be at liberty to put such questions to him as they may desire. After this matter has been finally determined, possibly after an appeal to this Court, the District Judge will be at liberty to re-transfer the execution proceedings to the Court of the Munsif. Each party will pay his own costs throughout these proceedings.