The main legal point established in the judgment is that the liability of sureties can be determined under the Code of Civil Procedure, 1908, and is limited to the property hypothecated by the security instrument.

Judgement

Appeal from a judgment and decree of the Court of the Judicial Commissioner (November 20, 1916), affirming a decree of the Subordinate Judge of Malihabad.

The appeal arose out of an application made to the Subordinate Judge under circumstances which appear from the judgment of their Lordships. The application, which purported to be under ss. 47 and 144 of the Code of Civil Procedure, 1908, was against the representatives of Raghubans Kunwar, deceased, as judgment-debtors, and the present appellants, as sureties. It prayed that the judgment-debtors (the appellants being included under that designation) might be declared liable for mesne profits, the liability of the appellants, as sureties, being limited to one lac.

The defence of the sureties was, inter alia, that their liability ended at the date of the judgment of March 26, 1903, dismissing the appeal of Sheo Singh. The second and fifth issues related to this defence, and respectively raise the questions whether the sureties were liable under the bond of September 10, 1902, for any of the mesne profits and whether their liability could be enforced in the execution department.

The Subordinate Judge delivered judgment on November 21, 1914. On the second issue he held that the sureties were liable to the extent of one lac, whether the mesne profits were deemed to be due under the Order in Council or (as he held to be the case) under the final Order of the Court of the Judicial Commissioner. And on the fifth issue his decision was also in favour of the present respondent. On account of mesne profits he found 3,60,000 Rs. to be due to the present respondent. A formal decree was drawn up giving effect to these conclusions and declaring the liability of the sureties under the bond to the extent of one lac.

The Court of the Judicial Commissioner affirmed the decision. The learned judges were of opinion that the liability of the appellants should be determined on the terms of the bond (which is set out in the judgment of their Lordships), and not with reference to the terms of s. 546 of the Code of Civil Procedure, 1882, under which the bond was given. They, however, considered that the terms of the bond were wide enough to cover an order passed by the Court of the Judicial Commissioner, either in the original appeal or under the subsequent order of His Majesty in Council.

1919. June 30; July 1. Dunne K.C. and E. B. Raikes for the appellants. The Subordinate Judge had no jurisdiction to make the order appealed from. The Court of the Judicial Commissioner had directed him only to find what was the amount of the mesne profits. There was no power under the Code of 1908, which was applicable at that stage of the litigation, to bring the appellants into the proceedings. Sects. 47 and 144 apply only to applications by and against parties or their representatives. Sect. 145, a new section, deals with sureties, but in terms applies only where the surety is personally liable. Upon the true construction of the bond the appellants were not personally liable. The bond could only be enforced by a suit under s. 90 of the Transfer of Property Act, 1882 Tokhan Singh v. Girwar Singh. (( 1905) I. L. R. 32 C. 494.) Further, having regard to the terms of s. 546 of the Code of Civil Procedure, and of the order in pursuance of which the bond was executed, the bond applied only until the then pending appeal had been determined. Prima facie security given pending an appeal relates only to the pending appeal Ranee Birjobtittee v. Pertaub Singh (( 1860) 8 Moo. I. A. 160.) ; Shek Suleman v. Shivram Bhikaji. (( 1887) I. L. R. 12 B. 71.) The decision in Narayan Dev v. Ganjanam Dikshit (( 1873) 10 Bom. H. C. 1.) is distinguishable as the terms of the bond were materially different. In any case the Courts in India were wrong in making a decree against the appellants personally.

De Gruyther K.C. and Kenworthy Brown for the respondent. The application was not to bring the property to sale ; a further proce