Sen, J. - (1.)[after setting out the facts of the ease His Lordship proceeded as follows:]-The main contentions of Mr. Thakor on behalf of the appellants defendants Nos. 1 to 3 and 5 are (1) that the present suit was incompetent, the plaintiff's remedy being to apply in the original suit to which the surety's sons might be joined and to seek an order under Section 151 of the Civil Procedure Code (2) that plaintiff No.2 having admittedly assigned the decree, she had no subsisting rights and was, therefore, incompetent to sue (3) that it was wrong on the part of the trial Court to transpose defendant No.6 to the position of plaintiff No.2 and (4) that the charge could not be enforced against defendants Nos. 1 to 3 as there were no antecedent debts or legal necessity when the bond was executed by their father.
(2.)THE first is the most important point, and Mr. Thakor has relied mainly on Raj Raghubar Singh v. Jai Indra Bahadur Singh (1919) L. R. 46 I. A. 228, s. c. 22 Bom. L. R. 521. In that ease an appeal to the Court of the Judicial Commissioner having been preferred against a decree of a Subordinate Judge for possession, the Judge ordered, under Section 545 of the Code of Civil Procedure, 1882, that the successful plaintiff should be let into possession in execution of the decree upon furnishing security so that any order made by the said appellate Court might be made binding upon the security for the sum secured. THE appellants entered into a bond reciting the order and hypothecating property to secure the sum provided; no obligee was named in the bond. THE appellate Court in the first instance affirmed the decree; but as the result of a successful appeal to the Privy Council, they subsequently dismissed the suit save as to certain villages and directed the Subordinate Judge to ascertain the mesne profits due to the defendants. Upon an application made to the Subordinate Judge, the appellants being made parties, he made a decree finding the amount of the mesne profits and declaring the liability of the appellants upon the bond to the amount secured. One of the contentions of the appellants was that there should be a separate suit to enforce the charge and that this must be one according to the procedure provided by Section 90 of the Transfer of Property Act (corresponding to Order XXXIV, Rule (6 ). As, however, no person was named in the instrument as the mortgagee or the obligee, that is, as the instrument did not purport to bind the sureties to any individual officer or to anyone, their Lordships held that this was not a case falling under the procedure provided by Section 90 of the Transfer of Property Act. It was then suggested that the sureties were bound to the Court, and their Lordships observed (p. 238): But the Court is not a juridical person. It cannot be sued. It cannot take property, and as it cannot take property it cannot assign it. It remains, therefore, that here is an unquestioned liability, and there must be some 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 (1895) I. L. R. 17 All. 99. Mr. Thakor has, accordingly, contended that as in the present case also the surety bond does not contain the name of any person in whose favour the hypothecation was made, the only mode of enforcing it would be by the Court making an order in the suit under Section 151 of the Civil Procedure Code. This point was never taken in the trial Court; but in darkhast No.42 of 1985, defendants Nos. 1 to 3 had contended that the surety bond could not be enforced in execution proceedings and that contention had been upheld and the darkhast dismissed. Though to a certain extent, therefore, this might be a case of approbating or reprobating on the part of defendants Nos. 1 to 8, they cannot, in our opinion, be precluded now from raising such a legal point, and we have allowed it to be argued before us.
It is regrettable that in this case the form given in Appx. G (No.2) of the Civil Procedure Code was not strictly followed. That form requires that the security bond is to be given to some person and is not intended to be a mere undertaking to the Court. This form was not prescribed in the Code of 1882 under which a security bond in Raghubar Singh's case was given. Their Lordships in that case observed (p. 238): Whether that someone should be the other party or an officer of the Court is not made clear; hut with this form (as prescribed in the present Code) in use it is not likely that the difficulty which surrounds the present case will arise in future. In another case brought to our notice, C. B. Timmannavar v. Dahaji Devichand (1946) A. O. No.48 of 1944, decided by Lokur J. , on March 7, 1940 (Unrep.) the hypothecation bond was not executed in favour of any named person. It is to be hoped that the Courts will be careful, when taking security bonds in cases like the present, to see that the formalities required are strictly observed. If the party executing such a bond binds himself to some officer of the Court, the latter can, under the order of the Court, assign the security to the party who wishes to avail himself of it; prima facie then such party would, it would seem, be in a position to enforce the bond by a suit. But such a course, as held in Raghubar Singh's case, cannot be followed in this case; and the only way of enforcing the liability under the bond must be, as in that case, "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. "

The learned Advocate General who appears for the plaintiffs was first inclined to argue that the above view of their Lordships must be limited to the circumstances and facts of that particular case. This was the view taken in Malda District Board v. Chandra Ketu Narayan Singh [1937] 2 Cal. 698 where it was also held that the creditor in such a case would be entitled to enforce the security by a suit, on the principle that a trust had been created in his favour and that in certain cases a cestui que trust can enforce a contract for his benefit by a suit. But the learned Advocate General, on further consideration, did not press this argument, and it seems to us rightly. A bond in favour of the Court can hardly belong to the category of such a contract nor a creditor to that of a cestui que trust. We must, therefore, hold that the present suit is not the proper mode of_enforcing the bond in question.

(3.)THE question then arises whether we can regard the proceedings in the lower Court as an application "in the suit" of the nature mentioned in Raghubar Singh's case. In paragraph 14 of the plaint the plaintiff prayed that if it was. held that the suit could not be maintained and that a miscellaneous application only would be enough, "the Court should treat this plaint as a miscellaneous application of that kind or any other proper application deemed necessary and should pass order for proceeding with the matter. " In this connection we have been referred to our power under Section 107 of the Code and Order XLI, Rule 33, but those are powers of the appellate Court, that is, in a proper suit. If proper proceedings could only be taken on an application under Section 151, prima facie our powers would be those of revision; in exercise of such powers it would, we think, be improper for us to convert the proceedings in the suit to proceedings of the kind of application that should have been made to the lower Court. To such an application the defence might not have been exactly' the same as the present defence.
Though there has been considerable delay in the disposal of the present proceedings, we think that the only safe course would be to set aside the decree of the lower Court and to send back the case to be tried on the footing that it is an application of the appropriate nature. Before we do that we think it necessary to say that the transposition of defendant No.6 to the position of plaintiff No.2 by the lower Court was fully justified. Mr. Thakor has in this connection relied on John Boisogomoff v. Manmathanath Mallik (1930) I. L. R. 58 Cal. 561. There a defendant was transferred to the category of a plaintiff without it being ascertained or decided what was to be put in the body of the plaint by way of that party's case, and the Judge made an order to the effect that certain allegations made by her in her petition should be deemed to be inserted somewhere in the middle of the original plaint, and nothing was said about her right to adopt the rest of the plaint for the purposes of the proceedings; and it was held that the transposition had not been proper. Such peculiar facts do not exist in the present case where it seems that the Court was right in acting under Order I, Rule 10, particularly in view of the possibility that the assignment deed might not be admitted in evidence. The Court might have got some necessary formal amendments to the plaint made (this may be allowed to be done now, if deemed necessary), but the transposition does not appear to change the essential nature of the proceeding. We, therefore, set aside the decree and send the case back to be tried in accordance with law on the footing that it is an application of the nature mentioned in Raj Raghubar Singh v. Jai Indra Bahadur Singh (at page 238), and that Fakeeradi Timmappa Budihal and Laxmava kom Hanamraddi Budihal are the applicants, the latter's name as defendant No.6 being deleted. As the plaintiffs have succeeded on a point raised for the first time in this Court, the parties will bear their costs so far incurred in this Court and in the Court below. Further costs in the lower Court to be costs in the cause. .

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