Wanchoo, C. J. - (1.) THIS is an appeal by firm Budhmal Champalal under sec. 18 of the, Rajasthan High Court Ordinance 1949 (No. XV of 1949) against the decree of a learned single Judge of this Court in an execution first appeal. We may briefly narrate the circumstances leading to this appeal,
(2.) THE appellant firm Budhmal Champalal filed a suit against one Devkinandan for a some of Rs. 4025/ -. A warrant of arrest before judgment under Order XXXVIII R. 1 C. P. C, was issued against Devkinandan. He was arrested and thereupon Shyamdass stood surety for his appearance. THEse proceedings took place in the court of the District Judge of Ganganagar. Later on, the suit was transferred to the Civil Judge at Suratgarh in March, 1948. It came up before the Civil Judge on 28th April, 1948. On that day the plaintiff's counsel was present but the defendant and his counsel were absent. THErefore, notice was issued to the defendant and his counsel to be present on the 10th May, 1948. Further, notice was also issued to the surety Shyamdas to produce the defendant on the 10th May. THE defendant Devkinandan did not appear on the 10th of May. THE surety Shyamdass appeared and made an application to the effect that the defendant was ill and could not appear on that day and prayed that the case may be postponed for at least six weeks. THE Judge was absent on that day and, therefore, the case came up on the 15th of May. On that day also the Judge was absent and the case then came up on the 20th May. On that day the surety appeared again but the defendant was absent. Issues were framed and the case was fixed for the 29th May when the defendant was asked to be present in order that his specimen signatures might be taken. THE defendant, however, did not appear on the 29th May and the counsel for the plaintiff did not insist on his specimen signatures being taken, and the suit was decreed ex parte. THEreafter there was an application for restoration and Shyamdass appears to have acted as Mukhtarkhas of Devkinandan defendant. This application was allowed and on the 2nd July, 1948, the defendant was ordered to appear in person. He, however, never appeared in person though a lawyer used to appear on his behalf. Eventually the suit was again decreed ex parte on the 3rd of January, 1949. Then there was an application for execution by the appellant as decree-holder. It was prayed that the surety should be asked to produce the judgment-debtor and if he failed to do so, execution should be taken out against him. Notice was issued to Shyamdass to produce the judgment-debtor on the 10th May, 1949. Thereupon Shyamdass objected that he was not bound to produce the judgment-debtor in execution proceedings and therefore the decree-holder could not take out execution against him. This application was decided against Shyamdass and he came in appeal to this Court. That appeal was allowed by a learned single Judge and hence this appeal under sec. 18. Three main points arise for consideration in this case. The first is whether Shyamdass respondent had undertaken to produce Devkinandan only till the suit was decided or till the decree was satisfied. The contention on behalf of the appellant is that O. XXXVIII R. 2 contemplates giving of security for appearance till the suit is pending and until satisfaction of any decree that may be passed, and that this was what was actually done in this case. This depends upon the interpretation of the bond filed by the surety Shyamdass. The relevant words used by Shyamdass are these: *** The question is as to what is the meaning of ***. The appellant contends that this means that the surety extends till the decree is satisfied while the respondent Shyamdass contends that this only means that the surety extends upto the date of judgment in the suit. Obviously the words "suit is pending" under O. XXXVIII R. 2 only refer to the period upto the delivery of judgment and the period thereafter is covered by the words "until satisfaction of any decree that may be passed". But learned counsel for the appellant contends that the word *** not the same thing as suit and that it has a wider connotation. In Concise Law Dictionary by Durgaprasad, the word *** is translated as 'suit', 'case', 'proceeding', 'cause', 'business' (see page 502 ). Therefore the word *** need not necessarily mean 'suit' though it may do so. The question then is: what the meaning is to be given to this word in a surety bond given in a civil suit? We feel that where the surety bond does not use the words mentioned in O. XXXVIII R. 2, and used a general word which can mean either 'a suit' or 'a proceeding' or 'a case', the translation of that word for purpose of civil suit must be 'suit'. In any case, it is well-settled that a security bond has to be interpreted strictly and a surety cannot be held liable except to the extent to which he is clearly bound. See David Johnston vs. Dwarka Pershad (1) (A. I. R. 1923 Lahore 696.), and Laxmichand vs. Gokalprasad (2) (1951 R. L. W. 24. ). It seems to us therefore that taking the meaning of the words used in this case, namely *** as they are generally understood, the surety in this case was only binding himself for the appearance of the defendant till the decision of the suit. It was urged that the word *** is more general than the word *** and the surety by the use of that word was binding himself till the decree was satisfied. Referring again to the same dictionary (page 135) we find the word *** is translated as 'adjustment', 'settlement', reconciliation', 'disposal', while the word *** is translated as 'decision', 'judgment', 'adjustment', 'settlement', 'award' (page 345 ). It seems to us that we cannot, under the circumstances, infer from the mere use of the word Rflq;k** that the intention, was that the bond should remain in force till the satisfaction of the decree. We do not understand why, if that was the intention, it was not brought out clearly in the bond in the same way as it is clearly mentioned in O. XXXVIII, R. 2. On a careful consideration, therefore, of this point, we agree with the learned single Judge that the words used in it mean that the surety was liable only to produce Devki-nandan upto the time of judgment of the suit and not thereafter. The second point that has been urged is that even if the surety was liable to produce the defendant only upto the time of judgment, there was default by him in that also; and as such he is liable under the terms of the surety bond. The material words have already been set out by us above and thereby the surety undertook that the defendant would continue to be present gkftj gksrk jgsxk in the court and if there was default the plaintiff would be entitled to realise the entire sum claimed along with cost from the surety's person and property. This undertaking was a little more than what Order XXXVIII, R. 2 contemplates, for, there it is provided that the security would be for appearance of the defendant at any time when called upon. But if the surety took upon himself an unconditional liability to see that the defendant would continue to be present in court gkftj gksrk jgsxk, he is bound by the strict terms of his contract. Reference in this connection may be made to Firm Shiv Dayal Ram vs. Md. Khan (3) (A. I. R. 1924 Lah. 490. ). In that case the words of the surety bond were these: *** It was held that where the surety for the judgment-debtor had given an unconditional undertaking to the effect that he would produce the judgment-debtor in court on all the hearings until the case was finally decided and in case of default to pay the decretal amount, the surety had become liable on the failure of the judgment-debtor to appear on one of the dates. In the present case the words are the same viz. , *** Therefore it was the duty of the surety to see that the defendant remained present through out in court till judgment was given. It is not in dispute that the defendant at any rate absented himself on all dates on which the case was taken up from the 10th May, 1948, to the 3rd of January, 1949. Under these circumstances, the surety would become liable under the surety bond provided his surety bond bound him to produce the defendant not only in the court of the District Judge of Ganganagar but also in the court of Civil Judge, Suratgarh. This brings us to the third point raised in this case. It is contended on behalf of the respondent that under the terms of his bond he had undertaken that the judgment-debtor would appear in the court of the District Judge of Ganganagar and that there was no undertaking by him that the judgment-debtor would appear in other courts to which the case might be transferred. Therefore, under the strict terms of his contract, he was not bound to produce the surety in the court of Civil Judge, Suratgarh, after the case was transferred to that court and his undertaking came to an end with the transfer of the case. We have already pointed out that the law is well settled that a surety bond has to be interpreted strictly and the surety cannot be held liable except to the extent he is clearly bound. We may refer further to the following observations to the Halsbury's Law of England, Second Edition, Volume 16, paragraph 52 at page 59: " The surety is regarded as a favoured debtor. He is entitled, as such, to insist upon a rigid adherence to the terms of his (the surety's) obligation by the creditor, and cannot be made liable for more than he has undertaken. " The question whether the surety is liable when the case has been transferred from one court to another has arisen often in criminal law, with respect to the interpretation of sec. 499 Cr. P. C. We may refer to Prabhu Dayal vs. Emperor (1) (A. I. R. 1927 All. 334. ). In that case the surety had undertaken to produce an accused person in the court of City Magistrate, Agra, and thereafter in the court of Session, if necessary. He was, however, ordered to produce the accused in the court of Sub-Divisional Magistrate, Purnea and it was held that such an order was illegal as he had never undertaken to produce the accused in the court of Sub-Divisional Magistrate, Purnea. In Hem Lal Ganguly vs. Emperor (2) (A. I. R. 1934 Cal. 101.), it was held that where a case is transferred from one court to another and the surety has not undertaken to produce the accused in the other court, the surety bond is discharged. In Emperor vs. Chintaram (3) (A. I. R. 1936 Nag. 243.), it was pointed out that, "section 499 (2) lays down that if the accused is to appear in some other court, the bond must expressly say so. Where, therefore, there is no mention in a bond of the court in which the accused is to appear, the bond cannot be enforced" In Ballabhdas Motiram Gupta vs. Emperor (1) (A. I. R. 1943 Bombay 178.) it was held that: " Where by a bond an accused binds himself to attend in a particular Court, but fails to appear in another to which the case is subsequently transferred, it cannot be said, on the construction of the bond, that the accused has broken the condition of the bond. " It is thus well established in criminal law that an accused or a surety is only bound by the strict terms of his bond and if the bond is to the effect that the surety will produce the accused in a particular court, it becomes discharged when the case is transferred to another court and the surety is not bound to produce the accused in that other court.
(3.) WE have not been able to find any case in this connection which is applicable to civil courts. The only case cited by learned counsel for the respondent is Mohammed Sheriff vs. Hussain Ghonse (2) (A. I. R. 1939 Madras 933. ). In that case, however, the suit was first pending before a Small Cause Court Judge and surety was taken for the appearance of the defendant. The suit was later returned for presentation to proper court as the Small Cause Court had no jurisdiction. It was presented to the same court on its regular side and the question arose whether the bond given by the surety had been discharged or not. It was held that the bond had been discharged as it could not be taken as in the contemplation of the surety when he guaranteed the appearance of the defendant in a particular case that the bond will also cover the appearance of the defendant in another case in a different Court though on the same cause of action. That case is, however, not on all fours because in that case the plaint was returned by the Small Cause Court Judge for presentation to the proper court though in actual fact, the proper court was the same Judge on the regular side. However, as the proceedings on the Small Cause Court side came to an end, and the plaint was re-presented on the regular side, it was held that the surety bond had been discharged and was of ineffective in the new Court. The present case, however, is only of transfer. But applying the principle of strict interpretation of the terms of a bond of this kind, we are of opinion that if a surety undertakes to produce a person in a particular court, he cannot be bound to produce him in another court when the case is transferred. Take for example the case where the surety undertakes to produce the defendant in the court of District Judge, Ganganagar, but for some reason or other, the case is transferred by the High Court to the District Judge of Udaipur. It would obviously be unfair to hold that the surety was bound to produce the defendant in the court of Udaipur. If he had known that he might have to do so, he could have very well refused to stand surety. WE are, therefore, of opinion that if it is intended to bind the surety to produce a defendant not only in the court in which the case is pending at the time when the surety bond is given but also in some other court to which it may be transferred there should be an express provision to that effect in the bond so that the surety may know to what extent he is going to bind himself. Where, on the plain terms of a bond, the surety has undertaken to produce a defendant in a particular court only, we are of opinion that his liability cannot be extended to production in another court if the case is transferred to another court. It was argued that this interpretation would lead to difficulty as cases are many a time transferred from one court to another. We, however, see no great difficulty in practice if care is taken to put in the bond a term binding the surety to produce the defendant not only in the court in which the case is pending at the time when the surety bond is given but also in any other court to which it may be transferred. We must, therefore, interpret the terms of this bond strictly and as it only says that the surety undertakes to produce the defendant in the court of the District Judge, Ganganagar, vnkyr okyk esa gkftj gksrk jgsxk, a breach would only take place if the defendant, absented himself from the court of the District Judge, Ganganagar, while the suit was pending there. The appellant relies on Dulhin Janak Nandini Kunwari vs. Kedar Nath Singh (1) (A. I. R. 1941 All. 140. ). In that case a suit was transferred from one court to another. The first court had passed an injunction and the question arose whether the injunction could be enforced by the second court or by the first court. It was held that all the proceedings including the proceedings relating to injunction were transferred and it was the second court which could enforce the injunction and not the first court. Learned counsel urges that the principle of this decision should apply in case of sureties. There is, however, a vital distinction between the case of an injunction and the case before us. An injunction is an order of the court and the liability under it arises by virtue of that fact and not because of any bond given by a party. Where proceedings are transferred from one court to another, the proceedings relating to injunction are also transferred and the order of injunction stands. But where liability arises not under the order of the court directly but under the terms of a bond given pursuant to an order of the court, it is the terms of the bond which will govern the liability, and if the terms of the bond provide for appearance only in one court and not in the court to which the case is transferred, they cannot be extended by the fact that an order of transfer has been made. The principle behind Dulhin Janak Nandini Kunwaris case is different and cannot be extended to the case of a surety bond. We find that the suit was instituted in the court of District Judge, Ganganagar, on the 12th of January, 1948, and Shyamdas stood surety on the 19th of January, 1948. Thereafter the suit was fixed in the Court of the District Judge, Ganganagar, for the 3rd of February, 17th of February, 27th of February and 18th of March, 1948. We have seen the order-sheets of these dates and they do not show whether the defendant was present or not. Thereafter the suit was ordered to be transferred on the 31st of March, 1948, and it is undoubted that the defendant was not present in the court of the Civil Judge, Suratgarh. As, however, there is no proof that the defendant had absented himself from the court of the District Judge, Ganganagar, and as the surety bond was only for his appearance in that court, it cannot be said that there was a breach of the conditions of the bond. We, therefore, dismiss this appeal but as the point was not taken before the learned single Judge, we order parties to bear their own costs of the appeal before us. Other costs will be as ordered by the learned single Judge. . ;