In the absence of a decree or order, the execution against sureties for the recovery of attached property cannot be maintained under Section 145 of the Code of Civil Procedure.

( 1 ) THE first judgment debtor who was the plaintiff in O. S. No. 89/1971 filed a suit for injunction against the present petitioner and another. She obtained a temporary injunction and an order for attachment of 75 cart loads of fuel lying in the suit property. The amin attached 75 cart loads of fuel and he on taking a surety bond in the name of the Court released the said attached fuel and gave it in the custody of judgment-debtors 2 and 3, who executed the surety bond. The suit came to be dismissed on 16-8-1973. After the dismissal of the suit, the sureties did not return the fuel to the decree holder. Thus, she is entitled to get back 75 cart loads of fuel from the sureties by filing the execution.

( 2 ) THE judgment-debtors contended that there was no decree or order passed by the Court at all. Therefore question of forfeiting the surety bord does not arise and they are not liable to pay any sum.

( 3 ) THE Learned Counsel Sri Hegde for the revision petitioner relied on Section 145 of the Code of Civil Proce-dure which reads as :

"where any person has furnished security or given a guarantee (a) for the performance of any decree or any part thereof, or (b) for the restitution 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 proceeding consequent thereon, the decree or order may be executed in the manner herein provided for the execution of decrees, namely : (i) if he has rendered himself personally liable, against him to that extent; (ii) if he has furnished any property as security by sale of such property to the extent of. the security ; (iii) if the case falls both under clauses (i) and (ii), then to the extent specified in those clauses, and such person shall be deemed to be 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. " before amendment the old Section 145, C. P. C. , read as : " (a) for the performance of any decree or any part thereof, or (b) for the restitution 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 proceeding 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. "Therefore, the amended section has brought about the amendment only to the extent that the surety in the case of a decree or an order passed by the Court can be proceeded with either personally or even against the properties of the sureties. The amended section by inserting in its opening part the words "given a guarantee" has now done away with, the view expressed in some decisions that the provisions of Sections 133 to 139 of the Contract Act did not directly apply to the surety bonds which provide such guarantee. The learned author in Mulla's Code of Civil procedure, 14th edition has stated : "instead of leaning en the inherent jurisdiction of the Court and not under this section, the amendment Act, 1976 has now introduced clauses (ii) and (in) which empower the Courts to execute the decree where the surety has furnished any property as security by sale of such property to the extent of the security and where the case falls under clause (i) and clause (ii ). e. , where the surety has rendered himself personally liable and as further security has furnished some property, to the extent specified in the security bond. It is submitted that since express power has now been conferred on the Court to execute the d