Das, J.:— (after stating the facts set out above, of proceeded as follows:) I have no doubt whatever that the decision of the learned Subordinate Judge is erroneous. It is conceded that section 145 of the Civil Procedure Code has no application to the case. The decision of the learned Subordinate Judge appears to be based on certain cases which were cited to him which according to him support the view that
“while a security bond given to a court under section 145 of the Civil Procedure Code can be enforced so far as personal liability of the surety is concerned by means of executing a decree against him, but if the surety takes upon himself more than personal liability and hypothecates immovable property, such hypothecation can only be enforced against the property by means of a regular suit.”
But the case before us is not one between a decree-holder and a surety of the judgment-debtor; the case is one between the decree-holder and the judgment-debtor and I can see no answer to the argument that in such a case section 47 must apply. It is impossible to say that the question which has been raised between the parties is not a question arising between the parties to the suit in which the decree was passed; nor can it be said that it does not relate to the execution, discharge or satisfaction of the decree. Now if this be so, section 47 provides that such a question shall be determined by the court executing the decree and not by a separate suit. It was faintly contended before us that as properties have been mortgaged, the only method known to law is to enforce the mortgage by suit; but as has been pointed out in many cases and particularly by their Lordships of the Judicial Committee in Raj Raghubar Singh v. Jai Indra Bahadur Singh, for a proceeding to enforce a mortgage there must be a mortgagor and a mortgagee. It may be conceded that there is a mortgagor in this case; but one may ask the question, who is the mortgagee? It was suggested before us by Mr. Pugh that the special Subordinate Judge of Panchi is the mortgagee. The special Subordinate Judge is not a juridical person, nor can he be sued. To adopt the words of their Lordships of the Judicial Committee, “It cannot take property, and as it cannot take property it cannot assign it”. It is true that the special Subordinate Judge has purported to assign the security bond in favour of the decree-holder; but to my mind that circumstance ought not to be taken into consideration by us since it is well settled that such a Judge is in no sense a juridical person. As I have said, the question arises between the parties to the suit and relates to the execution, discharge or satisfaction of the decree. If there were no authorities on the subject, I would have no hesitation in holding on principle that the decision of the learned Subordinate Judge is wrong.
But the question is also concluded by authorities. It is not necessary for us to refer to all the decisions which have been cited before us. The identical question was raised in the Calcutta High Court in Shyam Sundar Lal v. Bajpai Jainarain. It was held in that case that the relationship between a decree-holder, and a judgment-debtor who has executed a security bond under section 545, clause (c), of the Civil Procedure Code, mortgaging certain properties, for the due performance of the decree or order that may ultimately be passed by the appellate court, is not that of mortgagee and mortgagor; and that in the event of the appeal being dismissed the decree-holder is entitled to realise his decretal money by sale of the properties given in security without instituting a suit under section 67 of the Transfer of Property Act. The same view was substantially taken by the Judicial Committee in Raj Raghubar Singh v. Jai Indra Bahadur Singh. The material portion of the judgment of their Lordships is as follows:
“It is suggested that they”, namely, the judgment-debtors, “are bound to the Court. But the Court is not a juridical person. It cannot be sued. It cannot take property, and as it cannot take property it cannot assign it. It remains, therefore, that there is an unquestioned liability, and there must be some mode of enforcing it and that the only mode of enforcing it must be by the Court making an order in the suit upon an application to which the sureties are parties, that the property charged be sold unless before a day named the sureties find the money.” The procedure is in this passage stated with a clearness and precision which should not, in my judgment, mislead any person. In my opinion therefore it is open to the decree-holders to realise the properties in execution under section 47 of the Code.
Two other questions were raised by Mr. Pugh; first, that the application for execution should have been made before the special Subordinate Judge of Ranchi; and, secondly, that attachment was a necessary condition for execution. I will take the first point. Mr. Pugh's argument is founded upon the passage in the judgment of the Judicial Committee to which I have already referred; and he contends that if the decree-holder intended to enforce the security bond in execution proceedings the proper procedure was for the Company to make an application to the Court in which the security bond was executed. I am unable to see that the decision of the Judicial Committee gives the slightest encouragement for the argument. Their Lordships did not leave it in doubt that such an application should be made to the Court in the suit itself. Now it is obvious that if this be so, the proper court where the application could be made was the Calcutta High Court in its Original Side which heard the suit. The second point is that attachment is a necessary preliminary to an execution proceeding. This is undoubtedly so; but we must find out a, reason for the rule which requires a decree-holder to attach properties as a preliminary to taking execution proceedings. There is no doubt whatever that the whole object of attachment is to prevent an alienation and to make a particular fund available to the decree-holder; but this fund was available to the decree-holder as soon as the security bond was executed. It was impossible for the judgment-debtor after executing the security bond to alienate the property covered by the security bond to the embarrassment of the decree-holder. This has been dealt with by Wallis, C.J, in Subramanian Chettiar v. Raja of Ramnad and I entirely agree with his conclusion on it.
In my opinion it is impossible to affirm the judgment of the learned Subordinate Judge. I would allow the appeal, set aside the order passed by the learned Subordinate Judge of Purnea and direct that he do proceed with the execution. The decree-holders are entitled to their costs both in this Court and in the Court below.
Wort, J.:— I agree.
Appeal allowed.