The appellant became surety on behalf of the defendant in Original Suit No. 596 of 1897 during the pendency of that suit in the Court of First Instance. Though the security was taken after the attachment of property before judgment yet by the security bond the appellant consented to become liable for any sum that might he decreed.
A decree having been eventually passed against the defendant in that suit, application for the execution of the decree was made and granted against the appellant. Before the actual execution of the decree the present suit was brought for a declaration that the appellant was not liable for a portion of the decree sought to be executed against him on certain grounds unnecessary here to be stated. The order for execution against the appellant was not appealed against.
The objection taken on behalf of the respondent that this suit does not lie, the matter being one to be litigated only in execution proceedings must, in our opinion be upheld on the authority of Ex parte Bhikaji Vithal Ambekar(1), Ghoree Laljha v. Sheo Narain Singh(2), Akhoot Rumanah v. Ahmed Eusooffee(3), Shek Suleman v. Shivaram Bhikaji(4) and Thirumalai v. Ramayyar(5), see also Rajaram v. Bappu Chettiar(6).
In some of these cases it is expressly pointed out that the surety should he treated as a party to the suit and as the question sought to he raised by the appellant is one relating to the execution of the decree, the bar to a separate suit laid down by section 244, Civil Procedure Code, applies. On this ground, the suit ought to have been dismissed. We accordingly dismiss this second appeal with costs.