Certain cattle were attached in execution of a decree in favour of the appellant and the Amin in accordance with the Civil Rules of Practice under the Rule of the High Court, and, O. 21, R. 43 made over the cattle to a villager for safe custody and production in Court for which he executed a bond with two sureties. The appellant applied in execution to enforce the bond against the respondents sureties, on their failure to have the cattle in accordance with the bond produced. The question is whether the bond could be enforced in this way under Sect. 145.
It is argued that cl. (b) of Sect. 145 applies. It says; “where any person has become liable as surety for the restitution of any property taken in execution of a decree”, then the decree may be executed against him to the same extent to which he has rendered himself personally liable, in the manner provided in the Code for execution proceedings. This clause is prima facie intended for cases in which restitution is sought against the person who has taken the property in execution of the decree and restitution is to be made by such a person. Here it would be stretching the language of the Code too far to say that the sureties took the property in execution of the decree. We agree therefore with the interpretation put on this clause by Mr. Justice Sadasiva Aiyar in Kommareddi Subbareddi v. Koliipara Veerayya Tata(1).
It is also argued that cl. (c) applies. That says: “the surety bond can be executed against the person who has made himself liable for the payment of any money, or for the fulfilment of any condition imposed on any person under an order of the Court in any suit or in any proceeding conseqent thereon. Here there was no order of the Court under which any money was to be paid by any person or which required him to fulfil any condition imposed on him O. 21, R. 43 empowers the Amin of the Court entrusted with the warrant of attachment to make over cattle or moveable property of a like nature to the custody of a villager on his executing a bond. The act therefore is that of the Amin done under the authority conferred on him by law. The Court could not be said to have passed any order in this case, under which the bond was taken. The Court had not the terms of the bond before it; the Court knew nothing about it until the Amin's return was made. We must therefore hold that cl. (c) also does not apply. The only remedy open to the appellant (decree-holder) is to get the bond assigned by the judge himself and to sue upon it as pointed out in the case above mentioned. The petition is dismissed. No costs.
K. V. S.Petition dismissed.