SURENDRA NATH BHARGAVA,J. - (1.) THIS is a Civil Execution First Appeal against the order passed by Additional District Judge, Alwar, disposing of the objections raised by the appellant surety.
(2.) HAR Narain and Prabhu Dayal had filed a suit and the appellant Ganga Lahari stood surety for the payment of Rs. 6,278/ - for which an attachment order before judgment was issued under Order 38 Rule 5 CPC by a security bond executed by him on 20th December, 1963. Ultimately the suit was decreed on 1 -4 -1969 for a sum of Rs. 11,358,40 with costs against the respondents No. 10 and 11. The plaintiff -decree holders filed an execution petition on 21 -8 -1969 against the sppellant for executing the decree for a sum of Rs. 16,010.49 (entire decretal amount and interest and costs). The judgment -debtors preferred an appeal before this court against the decree dated 1 -4 -1969 and this court while disposing of the stay application, passed the following order: 8 -10 -1969. It is ordered that if the appellant furnishes adequate security to the satisfation of the execution court, for restitution, further proceedings shall be stayed in that Court. The respondents shall be heard by the execution court regarding the adequancy of the security. The security shall be furnished within 2 months, till then the execution of the decree shall be stayed. If default is made in furnishing the security, the stay order shall stand vacated. In pursuance of this order, the appellant, instead of judgment -debtors, got furnished security of one Dayaram on 6 -12 -1969. The executing court ordered for issue of a warrant of attachment against the appellant on 3 -2 -1973. During the pendency of the appeal filed by the judgment debtors against the original decree, one Jaidev Singh represented the judgment -debtor Samiti which bad gone into liquidation and he being the Liquidator of the judgment -debtor Samiti, did not press the appeal as the decree -holders had submitted their claims before him and consequently, the High Court dismissed the appeal as not pressed. The judgment -debtors moved an application for restoration of that appeal, and submitted that the Liquidator had no authority to withdraw the appeal as liquidation proceedings had terminated and that the act of the Liquidator was collusive. Learned counsel for the appellant submitted that the restoration application was allowed and the appeal was restored to its original number. The appellant filed an objection petition before the executing court on 10 -2 -1973 submitting the following objections: (1) No show cause notice was given to him as required by Section 145 CPC. (2) The decree ought to have been executed as against the judgment debtors and if the decree had not been satisfied then only, the decree should have been executed against the surety appellant in view of Section 145 CPC and Section 126 and 128 of the Contract Act. (3) A notice ought to have been issued under Order 21 Rule 22 CPC before issuing the attachment order. (4) Attachment order has been issued against the goods of the partnership firm Ganga Lahari Surajmal, whereas the surety was only appellant Ganga Lahari, one of the partners of the firm.
(3.) REPLY was also filed on behalf of the decree -holders on 24 -3 -73.;