Kemp, A.C.J:—
This is a Letters Patent Apple against the summary dismissal of the appeal from decision of the District Judge of Poona who reversed decision of the Extra-Joint Subordinate Judge, ??? in Darkhast No. 211 of 1925. Shortly put, the fact the case are as follows:—In Suit No. 192 of 1924 ??? plaintiff applied for an order for attachment before judgment. The deceased, one Anant Vasudeo Palande, ??? surety for the defendant under Civil Procedure ??? Order XXXVIII, rule 5. He executed a bond in ??? in Appendix F to the Code. On April 12, 1924, plaintiff and the defendant arrived at a compromise which was subsequently recorded as an adjustment the suit and a decree passed in terms thereof by ??? Extra-Joint Subordinate Judge. The compromise allowed the judgment-debtor to pay the amount instalments of Rs. 200 per month. The first instalments was payable on May 12, 1924, the second on June 1924, and the decree further provided that in ??? of payment of two instalments the plaintiff ??? recover the whole amount due. The question before us whether by this compromise the surety has been discharged.
Mr. Thakor for the appellant contends that it is ??? material whether the decree was passed on a compromise or whether it was arrived at after adjudication by the Court. He maintains that the surety is not discharged under the compromise decree. Turning to ??? 6 in Appendix F, it is not absolutely clear ??? the words “may adjudge” mentioned in the including part of the Form refer to the adjudication the Court on the claim or the adjudication of the ??? on the value of the property which the opponent ??? failed to produce when required. I doubt, however, ??? the words were intended to permit an inquiry ??? the value of the property so as to reduce the security ??? its production in case of its non-production. ??? any question of the value of the property ??? have been considered when the amount of the ??? was fixed. Nor is part performance by the ??? by producing only part of the property ??? to be produced a performance “pro tanto” by ??? surety of his guarantee. If the words refer ??? adjudication of the claim by the Court then, with ??? respect to the decisions to the contrary, I would ??? to say that a decree passed on a compromise ??? usually an adjudication contemplated by the ???. It is not an ordinary incident of the suit like an ??? through the Court where (see 2nd Schedule, ??? 16 of the Code of Civil Procedure) the Court ??? judgment. Section 2, clause (9) of the Civil procedure Code, shows that a “judgment” implies a ???. Section 2, clause (2) of the Civil Procedure Code, no doubt says that a decree is the formal ??? of an adjudication but the words “Court adjudge” in Form 6, Appendix F, mean, I think, that the Court is to be the arbitrator not that it merely to decree what the parties consent to. The adjudication required in a decree by section 2(2) may be taken as inferring that a consent decree means that the order on the compromise is an adjudication but does not necessarily define the meaning of the ??? “adjudge” in Form 6. The Court cannot refuse ??? record a compromise of the suit Order XXIII, rule ??? and it seems to me stretching the meaning of the ??? “adjudge” to say that where this power is taken ??? from the Court it has adjudged the dispute.
However, the appeal may, we think, be decided ??? another ground. Now, whether section 135 of the Indian Contract Act applies to the case of a bond pass ??? to the Court or not—and it must be noted that the relation of debtor and creditor did not exist between the plaintiff and the defendant when the bond ??? executed—I see no reason why the equitable principal underlying section 133 should not be applied this case.
The correct test, I think, to apply to this case whether the compromise which was subsequent embodied in the decree was in the contemplation the plaintiff and the surety when the latter became surety. It may be that, if a decree on a compromise comes within Form 6, there may be a compromise ??? is consistent with the obligations which the surety ??? undertaken to discharge. But in the present case ??? have the fact that the compromise allowed the payment of the decretal amount, which amounted to Rs. 1,800 instalments of Rs. 200 per mensem commencing ??? May 12, 1924. In other words, it would be nine month before the surety's liability, if it held good, extinguished. During those nine months the position the judgment-debtor might have altered very much for the worse. It is true that mere forbearance recover the debt might not release the surety but giving ??? debtor the right to refuse to pay except parts of the ??? at stated intervals alters the position of the surety ??? regards the debtor. His rights against the debtor ??? prejudiced by this compromise, and, I think, it can ??? be said that such a compromise was not one which as contemplated by him when he entered into the suretyship.
In this connection I would refer to the case of Tatum Evans and the following words of Mr. Justice ??? as he then was, in his judgment (p. 337):—
‘As regards Simson, [the surety], I am of opinion that he is not liable. ??? can be no doubt that he entered upon the suretyship on the understanding it there was to be a defence of the action, and not a complicated compromise ??? as took place ….; but I am of opinion that the compromise in this ??? is a thing so very different from a judgment in invitum pronounced by the ??? after some inquiry into the facts, as to release a surety who was not ??? suited about it. I do not think that in what took place, looking at the stance of the thing, there was, within the meaning of the bond, an ‘award ??? of such sum as the Court should think fit,’ but a complicated arrangement ??? which the surety had a right to be consulted.”
That is the test which, I think, applies here. In my opinion the compromise in order to be binding on the ??? in this case should have received his consent therefore, think that the appeal should be dismissed ??? costs.
Blackwell, J.:—I agree with my learned brother ??? this appeal should be dismissed for the reasons ??? by him in the latter part of his judgment.
??? desire, however, to say a word as to the correct ??? to be placed upon Form No. 6 in appendix F to the Civil Procedure Code. In my opinion the words at the end of that Form “as the said ??? may adjudge” apply only to a question which ??? arise in execution in proceedings against the ???, he the surety being called upon in default of the judgment-debtor placing at the disposal of the Court the property specified or the value of it or such portion as may be sufficient to satisfy the decree. I do not think that those words “may adjudge” have any application to the decree which the Court must ??? before requiring the defendant to produce and ??? at the disposal of the Court the property specified, ??? the value of the same, or such portion thereof as may be sufficient to satisfy the decree. Even, however, if the word “adjudge”, does refer to the word “decree, ??? I am still not satisfied that the surety would not ??? bound by a consent decree, provided that the ??? decree did not alter the obligations of the surety. Under section 2, sub-section (2) of the Code “decree” ??? defined to mean the formal expression of an adjudication which, so far as regards the Court expressing ??? conclusively determines the rights of the parties ??? regard to all or any of the matters in controversy ??? the suit and may be either preliminary or final. Under Order XXIII, rule 3, the Court is bound to record ??? compromise and shall decree in accordance the ??? with. Having regard to the definition of the word “decree” in section 2, sub-section (2), the recording a compromise and the passing of a decree in accordance therewith would, in my opinion, be an adjudication ??? the Court in the suit in question. However, in ??? opinion, a decision upon this point is really ??? for the determination of the matter before us, ??? I agree that this appeal must be dismissed for ??? reasons given by my learned brother in the latter ??? of his judgment.
Decree ???
J.G.R