G.L. Chopra, J. - (1.) THE facts giving rise to this second appeal in an execution case are these:
(2.) BABU Ram and others respondents brought a money suit against Jaimal Singh and applied for attachment of his property under O. 38 R. 5 C.P.C. On a notice having been issued to Jaimal Singh, Karora Singh and Amar Singh stood sureties on his behalf for payment of the amount in case the suit was decreed. The defendant died during the pendency of the suit and Mst. Attro, his widow, was brought on the record as his legal representative. On 30 -5 -2005 a decree for Rs. 2800/ - was passed against the assets of Jaimal Singh deceased in the hands of Mst. Attro. Execution was then taken out by the respondent against Karora Singh and Amar Singh, the sureties. They objected that: (i) they were sureties only to produce Jaimal Singh in Court and not to pay the decretal amount; and (ii) since the suit had been dismissed for default they were not liable for the decree passed on its restoration. The executing Court after recording evidence of the parties, disallowed the objections. Their appeal to the District Judge having failed, the sureties have come to this Court in second appeal. L. Ram Niwas, the learned counsel for the appellant, has referred to O. 38 R. 9 C.P.C. and contended that since an attachment made under O. 38 R. 5 ipso facto comes to an end on the suit being dismissed, the liability of the sureties must have terminated when the suit was dismissed for default. He has, however, not been able to cite any authority in support of his contention. Where an order dismissing the suit for default is set aside on an application for that purpose, the suit is revived as it was on the day when it was dismissed. The proceedings taken in the suit upto that date must also be deemed to have been revived and to have remained in force when the dismissal is set aside. An interlocutory order that had been made in the suit before it was dismissed for default should continue to have the same force when the suit is revived. No fresh order for attachment of the property of the judgment -debtor was required after the dismissal had been set aside. On the restoration of the suit the security bond given by the defendant is also restored and the decree -holder would be entitled to enforce the security bonds. This principle of law appears to be now well established.
(3.) IT is next contended by Shri Ram Niwas that the appellants had stood sureties for Jaimal Singh and not for his wife. The argument is that they had themselves liable to pay the amount of the decree that might be passed against him, but since he had died during the pendency of the suit, the sureties were not liable to pay the amount of the decree, that had been passed against his widow Mts. Attro. In the first instance this objection was not raised by the appellants in either of the Courts below and cannot be allowed to be raised for the first time in second appeal. Otherwise also I do not find any substance in the contention. The sureties took upon themselves to pay the decretal amount in place of Jaimal Singh, if the suit against him was decreed. It is wrong to say that no decree was passed against Jaimal Singh. The mere fact that he died during the pendency of the suit would not be of any importance and would not absolve the sureties of their liability so long as the decree was against his assets. Mst. Attro was not made personally liable under the decree and the same was not being executed against her. Reliance is being placed on a case reported as 'Mohip Narain v. F.A. Shaw',, 25 WR 250 Cal but the facts of that case were quite different. There the surety had made himself liable for the due performance of the duties of a servant to his master. On the termination of the lease in favour of latter for the management of which the principal had been employed, he was succeeded by some other lessee. In view of these facts it was held that the surety must be taken to have entered into the contract only for the time during which the relation created by the instrument of suretyship continued, and with reference only to the person to whom he made himself responsible. I do not see how this decision can have any application to the facts of the present case.;