The security bond under Order 38, Rule 5 of the Civil Procedure Code ceases to have effect if the Court does not pass a decree, and it is meant to give security only for the purpose of enabling the Court to execute its decree.

Krishnan, J.

1. In this case the appellant brought a suit against the first respondent in the Sub-Court of Madura and pending that suit, applied for attachment before judgment under Order 38, Rule 5 of the Civil Procedure Code. The 1st respondent agreed to furnish security and executed the bond, the effect of which is the question now before us. His suit was subsequently dismissed by the first Court.

2. The appellant, however, succeeded in getting a decree in the appellate Court. He now applies to have his decree executed against the properties mentioned in the security bond. It should be stated that after this application had been filed, the 1st respondent was adjudicated an insolvent, and all his properties have become vested in the Official Receiver, who has been brought on record as the 2nd respondent. The Official Receiver raised a number of contentions against the decree of the appellant being executed against the properties in question. It is sufficient for the disposal of this appeal to refer to one of them, namely, that the bond ceased to have any effect as soon as the decree of the 1st Court was passed, dismissing the appellants suit. The circumstances under which the bond was given we have already stated, namely that it was under Order 38, Rule 5. What that rule states is that the defendant should furnish security in such sum as may be specified under the order of Court to produce and place at the disposal of the Court when required, the said property (namely the properties that are attached) or such portion thereof as may satisfy the decree which may be passed by the Court in the case. We have to construe the bond with reference to the circumstances under which it was executed as its language is not clear.

3. The bond says : "In pursuance of the order of the Court, dated 22-3-1918 in I.A. No. 68 of 1918 in the above suit, I have hereby given as security all the rights which I have in the property described hereunder for the aforesaid suit amount. In case the aforesaid suit is decided in favour of the plaintiff the under mentioned property myself and my heirs hereby bind ourselves to be responsible for the said amount. This security bond is executed for Rs. 5,000."

4. The bond was executed to the Court. We have not before us the records of I.A. No. 68 of 1918 referred to in the bond.

5. But evidently it was some order passed by the Court under Rule 5, Order 38. Though the bond is worded somewhat widely it is clear that the respondent was giving security only for the decree that might be passed against him by the Court to which he gave the security.

6. There can be no doubt that if he had not furnished security and his property bad been attached before judgment, such an attachment would have ceased to have any effect as soon as the Court dismissed the plaintiffs suit. See Abdul Rahman v. Amin Sherif (1918) 45 Cal. 780. It seems, therefore, right to hold that the bond which really took the place of the attachment before judgment was meant to give security only for the purpose of enabling the 1st Court to execute its decree in case it passed a decree. As that Court did not pass a decree at all, but dismissed the suit, we consider that the Subordinate Judge was right in thinking that the bond ceased to have any further effect.

7. This view is in conformity with the case reported in Shek Suleman v. Shirram Bhikaji (1898) 12 Bom. 71 followed in Gailamudi Venkatasubba Rao v. Chaparala Rosayya (1914) M.W.N. 714 by a Bench of this Court. An earlier case in the Privy Council, Ranee Birjobutee v. Pertab Singh (1860) 8 M.I.A. 160 raised a somewhat similar question with reference to the security given for a Privy Council appeal. That appeal was dismissed by the Privy Council for default and then was restored. The question arose whether the security of Rs. 4,000 given for the appeal would continue as security for the subsequent proceedings in the Privy Council after the Privy Council had dismissed the original appeal.

8. Their Lo