Sharma, J. - (1.) THIS is an appeal against the appellate order of the learned Additional district Judge, and arises under the following circumstances.
(2.) THE respondent Nand Kishore filed a suit for the recovery of Rs. 600/- and odd against Lachminarain and applied for attachment of certain immovable property. THE Court issued a notice and ordered a warrant of attachment of the miiovable peoperty indicated by the decree holder in his application and further ordered that the attachment be not made if the defendant furnishes sufficient security for the decretal amount. A warrant of attachment was made over to the Nazir of the court who reached the spot and found the judgment debtor Lachminarain with certain gold ornaments on. He wanted to attach this property, but after some consultation a surety bond was executed by Pannalal indicating that in case of decree being passed he would pay the decretal amount together with costs. This surety bond was executed on the 15th February, 1947, when the Nazir had gone to the spot for attachment. THE case of the decree holder is that this surety bond after execution was handed over by the surety to the Nazir, whereupon, he did not proceed to attach the property. Shortly after however, the surety bond was taken by force from the possession of Giarsilal peon who had accompanied the Nazir. THEreafter there was some scuffle and the attaching party went to the police station, where the Nazir lodged a report. THE Nazir made a report to the execution court on the first opening day of the court after the incident. THE statement of the Nazir was recorded and a criminal case was launched, but the accused was acquitted. THE decree holder thereafter filed his application for execution praying that the decretal amount be realised from the surety Pannalal. The surety's case is that he had not handed over the surety bond after execution to the Nazir or the peon, but retained it with himself. After the execution of the surety bond he asked the defendant to put in his possession the property which was required to be attached, but the defendant declined and, therefore, he tore off the surety bond. Learned Munsif believed the story given by the decree holder, but allowed the objection of the surety on the ground that the surety bond was not veryfied. The decree holder went in appeal and the learned Additional District Judge, Jaipur, has reversed the order of the first court and holding the surety Pannalal liable, has ordered that the execution should proceed. Against the above order, the surety Pannalal has come in appeal. I have heard Mr. K. C. Sanghi on behalf of the appellant surety and Shri S. B. L. Saxena on behalf of the decree holder. It was argued by the learned counsel for the appellant that the surety bond was not executed in favour of the court and was never filed and verified in court. The surety did not like that he should be bound unless he had property of the defendant as a guarantee and when the defendant did not give him the property he, instead of delivering the surety bond to the Nazir, tore it off. It was argued that the alleged surety bond creates no liability against the appellant and the decree could not be executed against him by virtue of sec. 145 of the Civil Procedure Code. On behalf of the respondent, it was argued by Mr. Saxena that the surety bond is complete in all respects and it was not necessary that it should have been filed and verified before the court before it became effective. It was further argued that the bond had been delivered to the Nazir who by virtue thereof desisted from attachment. The surety had no authority afterwards to wrest the surety bond from the hands of the agent of the Nazir and tear it off. He is bound by the surety bond I have considered the arguments of both the learned counsel and have read the surety bond with special care. The following extracts from the surety bond which are relevant to the case when translated read as follows : - "in the case of Nand Kishore vs. Lachminarain security to the extent of Rs. 612/1/- had been called for by the Munsif East and therefore, I stand with the surety and executing this surety bond undertake that in case the suit is decreed, I shall pay Rs. 612/1/- together with costs of the suit, and if did not do it, the court may realise the decretal amount from my person as well as from my movable and immovable property. " This document is signed by Pannalal and is attested by a witness. On the language of the surety bond there remains no doubt that the appellant became liable as surety for the performance of any decree which might be passed against the defendant Lachminarain against the surety to the extent to which he himself had become personally liable, vide sec. 145/1/-plus Criminal Procedure Code. The appellant made himself liable upto the extent of Rs 612/1/-plus costs of the suit. The decree could legally be executed against him to this extent. The only question for consideration is whether it may be said that the contact of surety bond was complete. It is argued by Mr. K. C. Sanghi that there was nothing to prevent the surety from changing his mind immediately after he had executed the bond and before any step was taken on that surety bond. The evidence of the decree holder Nand Kishore clearly proves that after the surety bond had been executed and delivered to the Nazir, the property of the judgment debtor was not attached and when the attaching party was going to return, the surety bond was wrested from the hand of Giarsilal, peon of the Nazir. It is thus clear that by virtue of the surety bond the Nazir refrained from making attachment and when he had done this, the appellant thought it proper to wrest the surety bond from the hands of Giarsilal so that neither the attachment might take place nor any evidence of Panna Lal having stood as surety might remain and by this action of his avoid the liability which he had taken under the surety bond. The rulings which have been cited by the learned counsel for the appellant do not help him. One of the rulings cited is in the case of Subbaraya Pillai vs. Sathanatha Pandaram (1), wherein it was held that: - "sec. 145 is confined to cases where the liability of the surety has been entered into the force of the court or has been recorded by court in accordance with the provisions of the Code. It does not extend to surety bonds taken by a judgment creditor outside the court. " This ruling does not apply to the facts of the present case because in this case the security was taken under the orders of the court. In that case it does not appear that the surety bond was taken under any orders of the court. Moreover this ruling has been doubted by the same High Court in the case of Mowlavi Haji Mohamed Abdul Baqi vs. Kanuru Sundararamayya (2 ). It has been held in this latter case that: - "it is not essential for the purpose of executing a decree against a surety under the provision of sec. 145 (a) that the contract of suretyship should be in form of a bond or that it should be in favour of the Court. The language of sec. 145 (a) is wide enough to apply to | any contract of suretyship whereby a personal liability has been undertaken for the performance of a decree". The other ruling cited by the learned counsel for the appellant is in the case of Shyam Lal vs. Bahal Rai, (3 ). The fact of that case were altogether different and it does not appeal to me how the judgment in that case can be made applicable to the present case. In that case a mortgage decree had been passed and the decree holder had a right to realise that balance out of other property of the judgment debtor if the proceeds were insufficient. He therefore, made an application under O. 38 Rule 5 of the Civil Procedure Code that the mortgage property was insufficient to pay off the entire debt and the judgment debtor was going to dispose of his other property and the same be so attached under O. 38 Rule 5 of the Civil Procedure Code and it was held that the property which was under mortgage could be so attached under the circumstances of the case. Learned Counsel relies upon the following observations : - "the court could not however,pass an order attaching the properties; the proper order to pass first when so satisfied is to order judgment-debtor to furnish security to produce and place at the disposal of the court the property or to call upon the judgment debtor to show cause why he should not furnish security". In this case the court has not made an order attaching the properties without making an order that the judgment debtor be called upon to furnish security in the first instance. There does not appear to be any such defect in the order of the court for attachment of the property. Moreover even if it be taken that the surety bond is not a surety bond within the meaning of Order 38 Rule 5 Civil Procedure Code, it is undoubtedly a bond by which Pannalal has become liable as surety for the performance of any decree which may be passed in the suit. It is not only a surety bond given under Order 38 Rule 5 of the Civil Procedure Code which could be enforced under sec. 145 of the Civil Procedure Code. There was therefore no bar to the enforcement of the present surety bond and the lower appellate court was perfectly justified in holding that the appellant was liable thereunder and ordering the execution to proceed. I do not find any force in this second appeal and it is dismissed with costs to the contesting decree holder. Mr. K. C, Sanghi requests that the appellant be allowed to file an appeal to a Division Bench under sec. 18. of the Rajasthan High Court Ordinance, I do not find any point of general importance in this case on account of which the permission for such appeal be given. The permission is refused. . ;