H. Swarup, J. - (1.) This appeal has arisen out of proceedings under Secs. 47 and 145, I.P.C. It appears that a decree was obtained against the present appellants and in execution of that decree certain crops of theirs were attached and handed over to Ishwari Singh, respondent No. 1 as a surety. As the decree could not be satisfied and the attachment was continuing, the judgement-debtor moved the court under Section 145, C.P.C. for execution of the decree against the surety as, according to him, the surety had misappropriated the property and was not making it available for the satisfaction of the decree.
(2.) Both the courts below have dismissed the application as not maintainable. Before the lower appellate court two cases were cited. The case of Mathura Das v. Hari Shanker, A.I.R. 1949 Alld. 306 was relied upon by the judgement-debtor and the case reported in Gulsher Khan v. Bedi Lal, 1962 A.L.J. 539 was relied upon by the surety. Interpreting the two judgements, the court below took the view that the judgement-debtor had no right to move the court for execution of the decree under Section 145, C.P.C. These cases, however, do not lay down any such law and the learned Addl. Civil Judge was in error in taking such a view. In the case of Mathura Das a Division Bench of this Court had taken the positive view that a judgement-debtor has a right to move the application under Section 145, C.P.C. for recovery of the amount from the surety. Section 145, C.P.C. was held applicable to a proceeding initiated by the judgment-debtor for the purpose. In the case of Gulsher Khan 1962 ALJ 539 the Court based its judgement on the finding that the document executed by the Supurddar in that case fastened on him on liability. It was observed:- "In the present case it is not necessary to rest our decision on the ground that the judgement-debtor has no right to enforce the liability of the Supurddar under Section 145, because, as we have said above, the bond of the Superdar in the present case was not enforceable at all. It could not be enforced either by the decree holder or by the judgment-debtor." This case, therefore, was not decided on the view of law that a judgment-debtor has no right to move the Court for an action under Section 145, C.P.C. Further in the case of Gulsher Khan 1962 A.L.J. 539 the execution of the decree in which the property had been attached and given to the surety had been struck off. The Court had observed in that judgment. "The decree had in fact been satisfied in part and it was not the decree-holder who was trying to proceed against Mohd. Gulsher Khan as judgment-debtor or as surety in execution of his decree." The present is not a case of that nature. Learned counsel for the appellant has stated that the decree has not been satisfied and the execution has not been satisfied and the execution has not been struck off.
(3.) Section 145, C.P.C. provides:- Where any person has become liable as surety- (a) for the performance of any decree or any part thereof or, (b) for the restitution of any property taken in execution of a decree, or (c) for the payment of any money or for the fulfilment of any condition imposed on any person, under an order of the Courts in any suit or in any proceeding consequent thereon. The decree or order may be executed against him, to the extent to which he has rendered himself personally liable in the manner herein provided for the execution of decree and such person shall, for the purpose of appeal, be deemed a party within the meaning of Section 47";