P L D 2012 Balochistan 151
Before Mrs. Syeda Tahira Safdar, J
Syed SAEED REHMAN ---Appellant
versus
MUHAMMAD AZHAR J AMAL and 2 others ---Respondents
Civil Miscellaneous Appeal No.26 of 2010, decided on 11th January, 2012.
Civil Procedure Code (V of 1908) ---
----S. 145 & O.XXXVII, R. 2 ---Suit for recovery of money ---Enforcement of liability for
surety ---Scope ---On p laintiff's application for execution of decree, the defendant provided
surety bonds, and two persons had stood as surety for the production of the defendant before
the court ---Defendant failed to appear before executing court and before High Court on the
hearing of his appeal against order of Trial Court ---Plaintiff submitted that the sureties be
fortified and the decretal amount be recovered from the said persons who stood sureties
for the defendant ---Validity ---Decree or order became executable against a person who stood
surety for the judgment -debtor but only in cases described in S.145 of the C.P.C. and decree
could be executed against such a person only to the extent for which such person rendered
himself personally liable ---Terms of the suret y submitted, in circumstances, will be most
relevant in determining the liability of such surety ---Liabilities for a person who submitted
sureties for the judgment -debtor would be within the limits of the surety submitted by them ---
Terms of such bond submi tted as sureties would be important ---Perusal of said sureties
submitted on behalf of the defendant revealed that the said persons who stood surety for the
defendant only undertook to produce the defendant in person before the court till the time of
decisi on , and in case of failure, they should be liable for payment ---Terms of said sureties,
did not speak of any undertaking given by them for payment of the decretal amount ---
Request of the plaintiff to render the said persons, who stood surety for the defen dant, liable
for payment of decretal amount could not be acceded to ---High Court dismissed appeal of
defendant for non -prosecution.
Nemo for Appellant.
Muhammad Azhar Jamal, Respondent (in person).
Date of hearing: 19th December, 2011.
JUDGM ENT
MRS. SYEDA TAHIRA SAFDAR, J. ---Brief facts of the case are that the appellant Syed
Saeed Rehman filed instant appeal thereby challenged order dated 8th November, 2010 of
Additional District Judge -V, Quetta, whereby the suit filed by respondent N o.1 Muhammad
Azhar Jamal was decreed in his favour. Further, on an application filed for execution of the
decree the appellant was committed to civil prison for a period of one year. This appeal
preferred against these orders was admitted for regular heari ng through order dated 14th
December, 2010. It was further ordered: --
"Learned counsel states that the appellant is prepared to provide surety in the sum of Rupees
Twenty six Lacs (Rs.26,00,000) within a period of (3) three weeks to the satisfaction of t he
trial court. Accordingly, the appellant is ordered to be released from civil prison with
immediate effect if not required in any other case. The appellant however shall not transfer,
alienate or otherwise dispose of any property and shall not leave the jurisdiction of the trial
court until provision of surety of Rs.26,00,000, which is to be provided within three weeks to
the satisfaction of the trial court."
The case file further reveals that the money suit was filed under provisions of Order XXXVII,
Rule 2 Civil Procedure Code (C.P.C.) for recovery of an amount of Rs.26,00,000 (Rupees
Twenty Six lacs). Due to non -appearance of the appellant/defendant the suit was decreed
through judgment dated 11th November, 2009. Thereafter, the appellant approached t he court
below by way of filing two applications for setting aside of the ex parte decree and for
granting him leave to defend. Both these applications were refused, while during course of
execution of decree he was committed to civil prison for a period o f one year through order
dated 8th November, 2010. Being aggrieved of the order instant appeal has been filed. The
record further reveals that in compliance of the order dated 14th December, 2010 the
appellant submitted two surety bonds, while Abdul Bari s on of Abdul Wali, and Liaquat Ali
son of Juma Khan stood sureties for him. But despite submitting of the sureties the appellant
failed to appear, whereupon through order dated 23rd May, 2011 his sureties were called
upon to show cause why their sureties ma y not be forfeited. Both the sureties appeared in
person, and through counsel sought time for production of appellant, but remained failed. The
respondent/decree holder while appearing made request that the appeal may not be dismissed
for non prosecution, rather sureties be forfeited, and decretal amount be recovered from the
persons, who stood sureties for the appellant. Because there is no other means to satisfy the
decree.
2. Though, from the contents of the order dated 14th December, 2010 the app ellant before
this court undertook to provide surety to the tune of Rs.26,00,000, and it was ordered that till
providing of surety the appellant shall not transfer, alienate or otherwise dispose of any
property and shall not leave the jurisdiction of the t rial court. The appellant in compliance of
the order provided two sureties of Rs.13,00,000 each. The respondent No.1 at this stage
prayed for execution of decree against the sureties, and the amount be recovered from them in
satisfaction of the Decree. Sec tion 145, C.P.C. will be relevant in the circumstances, which
reads as under: --
145. Enforcement of liability of surely. ---Where any person has become liable as surety --
(a) For the performance of any decree or any part thereof or
(b) For the restitu tion of any property taken in execution of a decree, or
(c) 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 proceedings consequent thereon, the
decree or order may be executed against him to the extent to which he has rendered himself
personally liable, in the manner herein provided for the execution of decrees, and such person
shall for the purposes of appeal be deemed a party within the meaning of section 47:
Provided that such notice as the Court in each case thinks sufficient has been given to the
surety. "
Keeping in view this provision the decree or order become executable against a person stood
surety for the judgment debtor, but only in cases as descri bed in the section. Further, the
decree be executed against him only to the extent for which he rendered himself personally
liable. This means the terms of the sureties submitted will be most relevant in the
circumstances, as it will determine the liabilit y of the surety. In present case though both the
persons Abdul Bari son of Abdul Wali, and Liaquat Ali son of Juma Khan stood sureties for
the judgment debtor/appellant Syed Saeed Rehman, but their liabilities will be within the
limits of the surety submit ted by them. Therefore, the terms of the bond submitted by the
sureties will be of much importance. The perusal of the surety bonds reveals that the sureties
only undertook to produce the appellant in person before the court till decision, and in case of
failure they shall be liable for payment of Rs.13,00,000 (Rupees thirty lacs) each. But, the
terms of the sureties do not speak any undertaking given by the sureties for payment of
decretal amount. Therefore, in the circumstances, as the mentioned sureties did not render
them personally liable for payment of decretal amount, therefore, to this extent the request of
the respondent cannot be acceded to. But, as both the persons stood surety for production of
the appellant in person before the court during pend ency of the appeal, but failed, despite
having sufficient opportunities to produce him, therefore, in the circumstances the surety
bonds are liable to be forfeited in favour of the State. But, keeping in view the facts and
circumstances of the case a lenie nt view is taken, and the bonds thereby submitted are
forfeited only to the extent of Rs.10,000 (Rupees ten thousand) each in favour of the State.
The remaining surety bonds shall stand discharged.
3. The appellant is not in attendance, nor pursuing the matter despite giving several
opportunities, therefore, the appeal stands dismissed in default and for non -prosecution.
K.M.Z./7/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.