- (1.) THIS is an execution second appeal by one Mohan Lal against an appellate order of the Senior Civil Judge Sikar confirming an order of the executing court directing the recovery of a sum of Rs. 625/- from him on account of his failure to restitute the property in execution of a decree obtained by Bhairon Ram respondent No. 1 against Ladu Ram respondent No. 2 which was entrusted to him as Supardar.
(2.) IN execution of the decree a bullock, a buffalo calf and a buffalo belonging to Ladu Ram were attached and were entrusted to the appellant who executed a Supardnama undertaking to produce the attached property before the court whenever called upon to do so and on default to pay their price which was assessed at Rs. 625/- in the bond. The decree was for a sum of Rs. 624/4/ -. After attachment Ladu Ram filed an objection under Sec. 47 C. P. C. which was dismissed by the executing court. Against that order Laduram preferred an appeal and applied for stay of execution proceedings. Stay was granted to him by the appellate court subject to his furnishing security for the performance of the decree. One Nanu Ram stood surety for the performance of the decree. The appeal was however dismissed on 24. 11. 59 and on 14. 1. 60 the decree-holder applied for proceeding with the execution of the decree. Notice was issued to Mohan Lal to produce the attached cattle before the court. He did not produce the cattle, but filed an objection alleging that he was discharged by the act of the court in accepting another surety bond from Nanu Ram for the performance of the decree. This objection was overruled by both the courts below. On behalf of the appellant reliance is placed on Parvatibai Vs. Vinayak Balvant (1 ). The facts of that case are however distinguishable from the facts of the present case. In that case security for the mesne profit for two years was furnished to the trial court and subsequently the trial court stayed the recovery of the mesne profits for the two years on obtaining fresh security for the payment of the same. It was held that although sections 133 and 135 of the Contract Act are not in terms applicable to surety bond executed in favour of the court the principles underlying them are applicable and the effect of the orders passed by the trial court was to give time to the judgment-debtor to pay mesne profits for the two years the earlier surety bonds were discharged. A contract of guarantee is a contract to perform the promise or to discharge the liability of a third person in case of his default. It is a contract between the creditor, the principal debtor and the surety. The principle underlying Secs. 133 and 135 is that there can be no variation in the terms of such a contract without the consent of all the three parties concerned and if there is any such variation without such consent, the surety bond is discharged. Now the effect of the surety bond subsequently executed for the payment of the mesne profits was to give time to the judgment-debtor to pay them. This was entered into without the consent of the persons who had executed the earlier surety bond for the payment of the same mesne profits. Therefore it was held earlier surety bonds were discharged. In the present case the surety bond executed by the Supardar was for the restitution of the property taken in execution of the decree. This contract was not affected in any way by the subsequent contract for the performance of the decree which was entered into between the court, the judgment-debtor and Nanu Ram. I accordingly hold that the decision of the court below is correct and dismiss the appeal with costs. Leave to file special appeal was prayed for and is declined. .;