Sir John Edge:-

This id an appeal from a decree dated the 24th February, 1916, of the High Court at Allahabad which set aside a decree dated the 22nd September, 1913, of the Court of the Subordinate Judge of Shahjahanpur so far as it affected Abdul Rahman Khan, Asad All Khan, Raushan Ali Khan and Rajab Ali Khan, certain defendants to the suit who had appealed from the decree of the Subordinate Judge. The defendants above named were sued as sureties. The other defendants to the suit did not appeal from the decree of the Subordinate Judge, and his decree as against them has become final.

The plaintiff in this suit, who is a zamindar, in May 1902 contracted by lease to sell to Muhammad Avnana-tallah Khan, who will be referred to as defendant No. 1, trees growing in Mauza Gulavhai to be cut and removed by the defendant No. 1. A dispute having arisen between the plaintiff and the defendant No. 1 the latter brought against the Plaintiff a suit for specific performance of the contract, which on the 9th January, 1909, resulted in a compromise in accordance with which the suit for specific performance was decreed. In pursuance of the compromise the defendant No, 1 on the 14th January, 1909, executed a deed of agreement by which he covenanted with the plaintiff that he would abide by all the conditions as entered in the lease and would furnish in zamindari property sufficient security for the performance by him of the conditions entered in the deed of agreement. By one of those conditions the defendant No. 1 bound himself to deposit in Court within one month for payment to the plaintiff Rs. 6,000, less certain earnest money previously paid, and to pay to the plaintiff the balance of Rs. 18,000 of the purchase money by six half-yearly instalments of Rs. 3,000 each beginning on the 10th February, 1910, and agreed that,

"in the event of default in the payment of any instalment or of my giving up the forest the Zamindar (the plaintiff in this suit) aforesaid shall be at liberty to rescind the stipulation to pay by instalments and realise all the instalments remaining due in a lump" sum with interest at the rate of rupees six (Rs. 6 per thousand per mensem from the date of the instalments falling into arrears from the person and property of me and the surety through the Court. . . ."

That deed of agreement was registered on the 22nd January, 1909.

On the 27th February, 1909 the defendants Abdul Rahman Khan Asad AH Khan, Raushan Ali Khan, and Rajab Ali Khan, executed a surety bond in favour of the plaintiff by which, after reciting that the defendant No. 1 had taken the lease for cutting trees in Mouza" Gulavhai from the plaintiff :-

" For a sum of Rs. 24,000 (twenty-four thousand) as entered in the registered agreement dated the 14th January, 1909, in which all the conditions of the lease, are entered and which we have read and thoroughly understand," they agreed that :-

" We do hereby stand surety for the said Muhammad Amanat-ullah Khan the defendant No. 1 in the sum of Rs. 18,000 (eighteen thousand, and covenant that the lessee aforesaid shall act up to all the conditions contained in the said lease-agreement, and that if there be any breach of contract on his part and the Zamindar (the plaintiff) is put to any loss, or if the lessee does not pay the lease money or any part thereof, then we shall pay the same ourselves from our own pocket, and we, the sureties, shall be responsible for the losses and damage that may be sustained by him (the Zamindar). And as security for payment of the " theka" money as well as for losses and damages, etc., we do hereby hypothecate our Zamindari property specified below which is heretofore free and immune from all liens, and if it be found, subject to any lien, then we, the sureties, will be responsible therefor. And the lessor (the plaintiff) shall have power to realise the balance of his lease money in any manner he likes from us and the property under mortgage; we shall have no objection whatever."

That surety