- (1.) In the year 1944, the State of Tehri Garhwal desired to appoint a Tahwildar in the State Treasury. It was the practice in the state to require a prospective candidate to furnish surety bond in the sum of Rs. 10,000. 00 for proper performance of his duties. One Tungeshwar prasad was selected for employment as Tahwildar. On 10/06/1944, the respondent to this appeal-Jayanand Lakhera submitted a surety bond which is so far as it is relevant stated : "I, Jayanand Lakhera. . . . . . of my own, accord execute a property as security for Shri Tungeshwar Prasad Lakhera, at present tahwildar of Tehri Tahsil aforesaid; as Tungeshwar Prasad aforesaid has now been posted on Tehsil Tehri by the Darbar and security has been demanded from him, so, I Jayanand aforesaid stand as surety and declare that Tungeshwar Prasad aforesaid shall not misappropriate any kind of government money in cash, etc. and if he misappropriates government money in cash, then I the surety shall be responsible for the payment of the money of that amount, and the Darbar shall have the right to realize the amount found due from the personal property of me the surety. Therefore I have executed this property by way of security, so that it may be of use when needed. "the language used in the bond is somewhat obscure. It does not set out the name of the authority in whose favour it was executed, but the clearest implication was that it was in favour of the Durbar of Tehri Garhwal State. It is not clear whether Tungeshwar Prasad was appointed Tahwildar before 10/06/1944, or after that date, though it may be stated that the foot of the bond or in the correspondence accompanying it, there is an endorsement, dated 15/09/1944, that "the applicant Tungeshwar Prasad lakhera may be appointed. "
(2.) Tungeshwar Prasad in the course of his service was found to have misappropriated a sum of Rs. 21,300. 00. He was prosecuted and convicted. Thereafter, the State of Uttar Pradesh sought to recover the amount misappropriated from the respondent Jayanand Lakhera. Jayanand then filed suit No. 1 of 1955 in the court of the Civil Judge of Tehri for an injunction restraining the State of U. P. which was the successor to the Durbar of tehri Garhwal from recovering the amount of Rs. 21,300. 00 which was embezzled by Tungeshwar Prasad. The suit was partially decreed. The trial court held that the money embezzled was government money, and the bond was accepted (by the Durbar. He held however that the liability of Jayanand Lakhera was restricted to Rs. 10,000. 00. He accordingly issued an injunction restraining the State of U. P. from recovering an amount exceeding Rs. 10,000. 00 from Jayanand Lakhera. In appeal, the High court of Allahabad decreed the suit and restrained the State from recovering any amount from Jayanand Lakhera. The present appeal has been. preferred by the State with special leave.
(3.) It is Unnecessary to consider whether the amount embezzled by tungeshwar Prasad was government money. Both the courts have held that it was government money and on the view we take, even if the amount embezzled was government money, the respondent. Jayanand is not liable to be proceeded against for recovery of the amount of Rs. 10,000. 00 which the state now seeks to recover.;