T. N. VALLINAYAGAM, J.

( 1 ) HEARD Mr. P. G. Mogali for the petitioner and Mr. Agnihotri, for the first respondent.

( 2 ) ). An interesting question has been raised in this revision petition. The petitioner judgment-debtor No. 2 was sought to be arrested in execution of a decree for money. The petitioner was surety and he claimed that he has no means to pay. The executing Court ordered arrest. The point raised is whether a surety on whose behalf the loan was granted can raise a plea of no means. The authorities uniformaly held that answer to the above question in negative.

( 3 ) IN V. Velayudhan v. State Bank of India, AIR 1989 Kerala 38, it is held as follows :"obligation to account to the decree-holder is the first requirement of the clause, and every judgment-debtor whether he is a principal debtor or a mere guarantor or a surety has the said obligation to the decree-holder in accordance with the nature or circumstance in each case. Learned counsel cited the decision in Prem Ballabh v. Mathura, AIR 1967 SC 1342, wherein a partner in a firm was found to be having no obligation in a fiduciary capacity to account to the other partners. In that case, a decree was passed in favour of one of the partners in a firm against some other partners including the Managing partner. It was held that in the absence of special circumstances, a partner cannot be regarded as a trustee for the other partners. On the facts, and in principle, the observations in the said decision have no bearing on the question involved in this case. A guarantor's liability is based on an undertaking or promise to perform the thing or the act in the event of non-performance by the principal obligator. A guaranty itself is an undertaking by one person that if another person fails to perform or fulfil an obligation the guarantor would perform it. It is in the nature of a warranty that the thing guaranteed to be done shall be done despite the non-performance of it by another for whom the guarantee is made. It involves a liability to account to the person who first acted on the strength of the guarantee. When can we say that a person is bound in a fiduciary capacity to account? The term fiduciary is derived from Roman Law. It means as a noun, a person holding the character of a trustee or a character analogous to that of a trustee. As an adjective it means of the nature of a trust; having the characteristics of a trust; analogous to a trust; relating to or founded upon a trust or confidence". (Vide Black's Law Dictionary, Fifth Edition ). A person having duty, created by his undertaking to act primarily for another's benefit in matters connected with such undertaking has fiduciary obligation. The expression fiduciary capacity is not restricted to technical or express trusts, but includes also such offices or relations involving the imparting of a confidence on the strength of which one person has acted. When a guarantor gives an undertaking to another for advancing money to a third person, the guarantor knows that the other person would not advance money without such a guarantee. In other words, the money is advanced on the strength of the confidence reposed in the guarantor of the performance promised or undertaken. In that view, the position of a guarantor is very much near to that of a trustee, albeit some features of dissimilarities between the two. "the dictum in K. P. Ambady v. K. M. Balan, AIR 1959 Kerala 273 is relied upon, which is to the following effect :"where the terms of a security bond provided for an unconditional undertaking by the defendant in the matter of a sale return of attached articles, whether the jural relationship between the Court and the defendant was that of a bailor and bailee may be open to doubt. Assuming however that the defendant was a bailee under the bond vis-a-vis the Court, confidence was reposed in the defendant when the goods were handed to him for safe custody, that he will produce them into Court when called upon. There was,

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