Section 145 of the Civil Procedure Code, 1908 allows execution against a surety only when there is a decree or order passed by the Court for the recovery of money against one of the parties to the suit or proceeding, and to the extent to which the surety has made himself personally liable.

( 1 ) THIS miscellaneous appeal is directed against an order of the learned District Judge, Howrah, setting aside an order of the Subordinate Judge, 3rd Court, Howrah, for the execution of a security bond for the sum of Rs. 800/- against the surety Akshoy Kumar Das. The facts are briefly as follows:- The appellant Kunja Moyee Dassi instituted a suit against Panchanan Rong and others for declaration of her title to the suit property and for recovery of khas possession therein on the allegation that the defendants were holders of chakran lands and were no longer entitled to hold the same. There was also a prayer for recovery of mesne profits or bhag produce for 1355 and 1356 B. S. and for mesne profits up to the date of delivery of possession or for three years after the decree. During the pendency of the suit the appellant filed an application for temporary injunction, restraining the defendants Panchanan Rong and others from cutting the paddy which they had grown on the suit land. On 22-12-1954 the defendants filed an application for permission to cut and remove the paddy grown by themselves. The learned Subordinate Judge by an order dated 6-1-1956 permitted the defendants to harvest the paddy on furnishing security to the extent of Rs. 800/ -. The defendants furnished such security and Akshoy Kumar Das who is respondent in this Court stood surety to the extent of Rs. 800/ -. In the security bond it was stated that if the defendants lost the suit the surety would pay Rs. 800/- to the plaintiff appellant Kunja Moyee Dassi. The plaintiff appellant obtained a decree declaring her title and for recovery of khas possession and she also got a decree for price of bhag produce for 1355 and 1356 B. S. and it was provided that on paying Court fees for the same there would be a decree, for mesne profits up to the date of the decree. The suit was decreed on 14-7-1955 corresponding to 1st Sravan 1352 B. S. so that on filing proper Court fees the plaintiff wag entitled to a decree for mesne profits for 1357 to 1361 B. S. But such Court fees were not put in and therefore no decree for mesne profits for the period from 1357 to 1361 B. S. was passed. The plaintiff without paying such Court fees and obtaining a decree for recovery of mesne profits for the period 1357 to 1361 B. S. started an execution proceeding against the surety Akshoy Kumar Das for recovery of Rs. 800/- which he had undertaken to pay under the terms of the security bond in case the defendants lost their suit. There was an objection by the surety Akshoy Kumar Das to the effect that the decree holder was not entitled to recover Rs. 800/- from him because firstly the decree holders had not put in Court fees in respect of the mesne profits for the period 1357 to 1361 B. S. and secondly because the mesne profits of the land for years 1355 and 1356 B. S. had been assessed at Rs. 266/- per year and that the Price of the paddy and the straw would not exceed Rs. 290/- at most after deducting half the price of the produce for the cost of cultivation, and that in the circumstances even if the plaintiff had filed court fees the plaintiff could only recover up to maximum amount of Rs. 290/- against him and not the sum of Rs. 800/ -. The learned Subordinate Judge, however, overruled the objection of the surety Akshoy Kumar Das and held that under the terms of the security bond which the surety had executed the surety had bound himself to pay Rs. 800/- if the defendants lost the suit, and as the defendants had lost the suit, the surety could not escape the liability. Accordingly, the objection of the surety under Section 47 of the Cr. P. C. was dismissed.

( 2 ) THERE was an appeal to the District Judge, Howrah, and the learned District Judge upheld the objection of the surety viz. , that as the Plaintiff had not yet got a decree for the mesne profits for 1361 B. S. by paying appropriate Court fees on the amount, the order or decree for recovery of any money would not be exe