Nawal Kishore, J. - (1.) THIS is a plaintiff's appeal against the judgment of the learned District Judge, Jodhpur, holding that the terms of surety bond did not make the surety liable in the execution proceedings. The facts relating to this case are these:
(2.) LAXMICHAND appellant instituted a suit against Rao Raja Gordhansingh for the recovery of Rs. 2,249/- in the Court of Civil Judge, Jodhpur, and on 23rd of February 1949 applied for the issue of a warrant of arrest before judgment against the defendant under Order 38 rule 1 of the Civil Procedure Code. On 28th of February 1949, a warrant was ordered to be issued accordingly and Gokal Prasad, respondent, stood surety and executed a bond as follows: *** Shortly after the execution of this bond, the parties appear to have come to terms and accordingly, on 4th of April, 1949 a consent decree was passed against Gordhan Singh. On 14th of April 1949, Gokal Prasad surety applied under Order 38 rule 3 for being discharged from his obligation as a surety. A notice was issued to the defendant but service could not be effected upon him. Even a warrant of arrest issued against the defendant could not be executed and hence the surety's application remained undisposed of. In the meanwhile, Laxmichand filed an application for execution of the decree and on 13th of October 1949, a notice was issued to the surety either to produce the judgment-debtor or deposit the amount of the bond. The 14th of November 1949 was the date fixed but the judgement- debtor was not present and, accordingly, the surety was directed to deposit Rs. 2,249/ -. Against this order, an appeal filed in the Court of the learned District Judge, who set aside the order of the trial Court and held that the surety was not liable as he had undertaken to produce Gordhan Singh only in the suit and not in the execution proceedings. 4. After hearing the learned counsel for the parties, I am of the view that the conclusion arrived at by the learned District Judge is correct. The bond was executed after a warrant of arrest had been issued in terms of Order 38 Rule 1 which were to the effect that Rao Raja Gordhansingh was to be taken into custody and brought before the Court in order that he may show cause why he should not furnish security for the amount of Rs. 2,249/- for his personal appearance before the Court until such time as the said suit was fully and finally disposed of and until satisfaction of any decree that may be passed against him in the suit. According to Form No. 2 in Appendix F. of the Civil Procedure Code, bond is intended to be executed in the every words, that is, the surety undertakes that the defendant shall appear at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the said suit. The bond in suit was however not executed in these terms and it is clear that Gokal Prasad undertook to produce the defendant only in the suit and agreed to pay the sum of Rs. 2,249/- in case he failed to do so or if the defendant disposed of his property. He did not mention in the bond that the defendant will appear not only while the suit was pending but also until satisfaction of any decree that may be passed against him. The question whether a surety has incurred liability under the bond always depends upon the strict terms of the bond and he cannot be held liable except to the extent to which he has bound himself. If the contingency, in which the bond is sought to be enforced, does not fall within its language, as held in 1948 Mad. 302 (1) it is not permissible to override that language in the light of what the parties intended if they did not succeed in expressing that intention in suitable language. The learned counsel for the appellant concedes the force of these principles but urges that the bond should be construed in the light of the circumstances and the order in pursuance of which the bond came to be executed. He has cited 1932 P. C. 131 (2) in support of this proposition but it is clear from a perusal of this judgment that the circumstances and order directing the security to be given are to be resorted to only where there is a doubt or difficulty about the construction of the language of the bond. In this case, on a plain perusal of the bond, no such difficulty arises. A reference has been made during the course of arguments to an application dated 14th of April 1949 made by the surety himself in which he affirmed the position that he had executed the bond under Order 38 rule 1 and 2 of the Civil Procedure Code and it has accordingly been contended that whatever be the language of the bond, it must be held that the surety had undertaken to produce the defendant in the execution proceedings as well. This, however, is not a correct proposition. The bond was no doubt executed in pursuance of an order passed under Order 38 rule 1 but the Court must still resort to the language of the bond itself and then determine the extent to which the surety had undertaken the liability. If it is only during the proceedings in connection with the suit and execution proceedings are not mentioned in the bond, the liability must be restricted to the extent to which it has been undertaken. The learned counsel argued that the word "suit" should be deemed to include execution proceedings. This contention however is contrary to the plain language of Order 38, rule 2 where suit has been mentioned as something different from proceedings in the execution of a decree. This view prevailed in a judgment by Bapna J. in Shyamdas v. Firm Budhmal Champalal (S. B. Civil Appeal No. 38 of 1949) where it was held that under Order 38 rule 2, execution proceedings had been differentiated from suits. I respectfully agree with the view taken in this judgment and have no hesitation in rejecting the contention of the learned counsel for the appellant. The result is that this appeal fails and is hereby dismissed with costs. .;