The defendant's liability under the security bond was determined by the terms of the bond itself, and the defendant and his sureties were found to be liable for arrest under cl. (c) to the proviso to S.51 of the Civil Procedure Code.

1. The matter arises in execution of the decree, in connection with the enforcement against the revision petitioners, of a security bond executed by them.

2. The suit was one for money. Pending suit the plaintiff-respondent applied for and obtained attachment before judgment of certain movables belonging to the defendant - 2nd petitioner. Immediately thereafter, the movables were handed over to the defendant himself for safe custody under security bond dated 28-1-1956, executed by him and two others, of whom the 1st petitioner was one. The suit was decreed on 7-2-1957. Subsequently, on notice issued to produce the articles for purposes of sale in execution, the 1st defendant defaulted. The plaintiff then moved for enforcement of the security bond as against the petitioners by issue of warrant of arrest. The petitioners pleaded non-liability on various grounds but the plea was rejected. Hence this revision,

3. We are concerned with only two of the objections raised by the petitioners. Firstly, that the goods were lost on account of theft and they were in consequence exempt from liability. Secondly they had no means to pay and were therefore not liable to arrest. Taking up the first ground, learned counsel Mr. Sundara Iyer for the petitioners urges that the defendant must be taken to be a bailee within the meaning of S.151 of the Indian Contract Act and if so, he could be made liable only if he failed to exercise the ordinary prudence of an owner. Learned counsel complains that the court below had altogether omitted to consider the matter and the question may therefore be remitted for consideration by that court. Now the condition of the bond executed by the defendant was that he should produce the articles whenever and wherever and to whomsoever ordered by the court and that in default of production of the said movables the defendant and his sureties will jointly and severally be liable to pay to the court, an amount of Rs.1,329-6-0, that is, thrice the amount as shown in the attachment list. S.151 of the Contract Act says:

S.151. "In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances take of big own goods of the same bulk, quality and value as the goods bailed".

S.152 then says:

S.152. "The bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in S.151".

Whether the jural relationship between the court and the defendant as constituted by the security bond in this case is that of a bailor and bailee may be open to doubt. Even so, his liability cannot be measured by S.151, For the terms of the security bond would appear to provide for an unconditional undertaking by the defendant in the matter of the safe return of the articles. He must therefore be held to have entered into a special contract contemplated by S.152, to produce them into court in any event, short of viz. major. There is therefore no force in the objection raised that the defendant or his sureties were not liable on account of loss by theft. The court below has no doubt not dealt with the matter. But in the view I have taken as above, the petitioners cannot have any real grievance. For all that we know the point was not seriously taken before that court.

4. Coming to the second question as to non-liability for arrest, the proviso to S.51 of the Civil Procedure Code while insisting generally on a preliminary hearing of the judgment-debtor as regards his arrest in execution, excludes from such requirement three categories of cases the last of which is contained in cl. (c)

"that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to

account."

The court below found that the case here fell within this category and the petitioners could not therefore plead exemption from arrest. Learned counsel objects th