- (1.) THIS is an execution second appeal by the decree holder against an appellate order of the District Judge, Jodhpur holding that the security bond executed by the respondent No. 1 under section 55 (4) G. P. C. was discharged.
(2.) IN execution of a money decree respondent No. 2 was arrested and was brought before the court under arrest on 8th September, 1962. He expressed his intention to apply to be declared an insolvent and respondent No. 1 furnished security as contemplated under section 55 (4) C. P. C. which runs as follows: - " (4) Where a Judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply and that he will appear, when called upon if any proceedings upon the application or upon the decree in execution of which he is arrested, the Court may either direct the security to be realised or commit him to the civil prison in execution of the decree. " IN the security bond three undertakings were given (1) that the judgment-debtor will apply within one month to be declared insolvent, (2) that he will appear when called upon in any proceedings upon the application for insolvency and (3) that he will appear when called upon in the executing court on 12th October, 1962. He did not appear. Thereupon notice was issued to the surety to show cause why the amount of the security bond namely Rs. 500/- should not be recovered from him. The executing court was of the opinion that as the judgment-debtor had failed to appear before the executing court when he was ordered to do so the security bond was forfeited. The appellate court was however of the opinion that as the judgment debtor had applied for being declared an insolvent the security bond should not be forfeited as the words of section 55 (4) are "if he fails so to apply and to appear. " IN doing so he followed the decision of the Alld. High Court in Firm Lachhman Das Chhidulal vs. L. Babu Lal, Surety and others (1 ). I have heard the learned counsel for the parties and am of the opinion that the decision of the lower appellate court is erroneous. It has been held by the Madras, Bombay, Patna and Lahore High Courts and the Court of Judicial Commissioner, Sind, in Woriur Commercial Bank Ltd. vs. Kaja Maroop Sahib (2), Manakji Mavji V. Bhukandas Magardas (3), Dedhraj V. Mahabir Prasad (4), Dharam Singh vs. Nand Singh (5) and Assandas s/o Laldinomal V. Hardasmal and another (6) that where the judgment-debtor will within one month apply to be declared an insolvent and (2) that he will appear when called upon in any proceedings upon the application or upon the decree in execution of which he was arrested the security is liable to be forfeited when there is a failure to comply with either condition. I am in respectful agreement with the view taken by the majority of the High Courts. If the Allahabad view is accepted it would mean that even if the judgment debtor does not apply for being adjudged insolvent but keeps on appearing before the executing court the security bond is not forfeited. That is not obviously the intention of section 55 (4 ). The word "and" occurring between the words "if he fails so to apply" and "to appear" should be read as "or" to carry out the real intention behind the provision. I accordingly allow the execution second appeal, set aside the order of the lower appellate court and remand the case to the executing court for proceeding further with the execution in accordance with law. In the circumstances of the case I direct that parties shall bear their own costs of this second appeal. .;