JUDGMENT

Sulaiman, J. - This is a defendants' appeal arising out of a suit for sale on the basis of a security bond dated 11th July 1907, executed by the defendant-appellants. It appears that Mt. Faiz-un-nissa obtained a decree against Mt. Hanif-un-nissa from the High Court in appeal arising out of suit No. 37 of 1903. The decree was for about Rs. 63,000. Mt. Faiz-un-nissa sold her decree to Bansi Dhar, the father of the present plaintiffs for Rs. 40,000 Prior to these proceedings Mehdi Ali Khan and Abdullah Khan the appellants held a decree in suit No. 20 of 1902 for over Rs. 11,500 against Mt. Faiz un-nissa. In execution of their decree they attached the decree held by Mt. Faiz-un-nissa against Mt. Hanif-un-nissa. This sale took place after the attachment and therefore all claims under it were subject to that attachment.

2. The attaching creditors sought to execute the decree but the Court ordered that the decree should be executed by Bansi Dhar although when the sale proceeds are realised the decree of the attaching creditors should be discharged first. In execution of this decree some property was sold at auction on 26th October 1906 for Rs. 14,950 and bulk of it was purchased by strangers. One property, viz.: an Indigo Factory was purchased by Bansi Dhar himself. After this the judgment-debtor deposited nearly Rs. 6,000 in Court and later paid out of Court over Rs. 54,000. In t+his way the whole amount of the decree was paid off.

3. When Bansi Dhar wanted to take out the money from the Court he was ordered to furnish security before he took out the money (order dated 4th January 1907, p. 32). Similarly when Mehdi Ali Khan and Abdullah Khan applied to take out the money from the Court in discharge of their decree the Court ordered that without furnishing security they could not be allowed to do so (p. 35). After the passing of this order Mehdi Ali Khan and Abdullah Khan filed in Court a security bond dated 11th July 1907, which is printed at p. 41 and is the subject of controversy. On the filing of that security they were allowed to take out the whole of Rs. 14,950 realized by the sale of the property as well as a part of the amounts deposited subsequently.

4. All this time the appeal of Mt. Hanif-un-nissa was pending before their Lordships of the Privy Council. The appeal was remanded to this Court and this Court ultimately dismissed the suit and in this way reversed the decree.

5. Then followed protracted proceedings for restitution. Mt. Hanif-un-nissa applied for restitution of properties purchased by the strangers as well as by Bansi Dhar but her application as against the strangers was dismissed. We are informed that she recovered the Indigo Factory from Bansi Dhar. Later she applied for restitution of the amount against Bansi Dhar and to these proceedings she also impleaded Mehdi Ali Khan and Abdullah Khan. The learned Subordinate Judge dismissed her application (p. 79). On appeal the High Court remanded the Case holding that Bansi Dhar was liable personally u/s 144, Civil P.C. to her for restitution. Piggott, J., further remarked:

In the event of Bansi Dhar satisfying the claim of the appellants he will be entitled to enforce as against Mehdi Ali Khan and Abdullah Khan the liability undertaken by these gentlemen as sureties on his behalf.

6. This remark, however, was not directed to any point which was specifically in dispute at that time.

7. The result of all these proceedings has been that Bansi Dhar and now his sons have had to pay all the sums taken out of Court and in that way have made complete restitution to Mt. Hanif-un-nissa and her representatives.

8. The present plaintiffs, viz.: the sons of Bansi Dhar, did not apply to the Court before which the security was furnished for any remedy but instituted the present suit claiming to enforce the charge created by the security bond. The defence raised on behalf of the appellants was that no charge existed and that the bond could not be enforced by the plaintiffs as agains