- (1.) THIS is an execution first appeal by the sureties.
(2.) ON behalf of the appellants two points were urged. Both these contentions were raised before the executing court and were overruled by it. Having heard the learned Counsel for the appellants I am of the opinion that the decision of the court below is correct. When the sureties executed the surety bond then the judgment debtor owned some machinery which had been attached in the execution of the decree. It was subsequently sold for Rs. 4, 200/ - by an auction sale. Section 141 of the Contract Act runs as follows: Surety's right to benefit of creditor's securities. - A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and, if the creditor loses or, without the consent of the surety parts with such security, the surety is discharged to the extent of the value of the security. The contention on behalf of the appellants is that by the sale of the machinery the whole of the bond was discharge. This contention cannot be supported on the basis of Section 141 of the Contract Act because of the words 'the surety is discharged to the extent of the value of the security', which is lost. The surety took liability for the payment of Rs. 12.000/ -. The executing court has rightly held that the decree -holders are entitled to execute the decree against them to the extent of Rs. 7800/ -.
(3.) THE final decree was passed by the High Court on 13.7.1954. The decree -holders first proceeded against the judgment -debtors. The execution application against the sureties was filed on 2.11.62. This application was filed within 3 years of the date of the final order passed on an application made in accordance with law to the proper court for execution against the judgment -debtors. If the application for execution were made on 2.11.62 against the judgment -debtors it would have been within time under Article 182(5) under the old Limitation Act.;