JUDGMENT

Sulaiman, Ag. C.J.

1. This is a plaintiff's appeal arising out of a suit for a declaration that a certain house is not liable to be attached and sold in certain execution proceedings, and for a perpetual injunction restraining the principal defendants from taking any such proceedings.

2. It appears that one Murtaza Khan obtained a decree for sale against Bandhan. In execution of the decree the mortgaged property was sold and purchased by Lalta Singh, defendant 1. This defendant deposited the money in Court and Murtaza Khan withdrew the amount. Subsequently a minor Ram Prasad brought a suit for setting aside the sale, and got it held that the property did not belong to Bandhan. That judgment was affirmed on appeal, The property having gone out of the auction purchaser's possession he applied for a refund of the amount of the purchase-money. Murtaza Khan filed some objections but they were disallowed and he was ordered to repay it. While a revision on behalf of Murtaza Khan was pending, he obtained a postponement of the execution on the present plaintiff, Ram Kishun, standing as surety for the payment of the amount. Ram Kishun filed an unregistered security bond purporting to hypothecate another house. The deed further contained a covenant:

if the entire decree money cannot be recovered from the said property, I and ray lawful representatives shall be liable for payment of the amount due.

3. The revision was ultimately dismissed Lalta Singh first tried to get the house included in the security bond sold. A warrant of attachment was issued but the amin reported that the boundaries did not tally, and that the person in actual occupation of the house claimed that it did not belong to Ram Kishun. After this the decree-holder applied on 18th March 1924 that the surety had deceived the Court and that the house, purporting to have been hypothecated, did not belong to him, and prayed that the Court might order realization of the decretal money from the surety personally.

4. The Court ordered a warrant to issue for the arrest of the surety. Several attempts were made but they all proved infructuous. In May 1924 the Court ordered the attachment of the house now in dispute. A copy of the order was duly served on the surety and attachment was effected. He did not appear to contest the order. The decree-holder then deposited expenses for sale, and notice under Order 21, Rule 66 was issued to the surety for the purpose-of drawing up the sale proclamation. Though it was duly served on him, he did not again appear, and his house was sold at auction. On 20th August 1924 he filed an application purporting to be under Order 21, Rule 90, for setting aside the sale on the ground, that the decree-holder, without having taken any steps to get the property hypothecated sold, was not entitled to get the other property of the surety sold. Subsequently, on 26th August 1921, he fled an application purporting to be u/s 47, Civil P.C., for setting aside the sale on the same ground. While these applications were pending, the present suit for declaration was instituted on 22nd September 1924. Then on 29th September 1924 Ram Kishun's vakils stated before the Court that they had no objection to the confirmation of the sale as they had filed a separate suit. The objections were accordingly dismissed and the sale was confirmed. Ultimately an appeal from that order was also dismissed by the District Judge.

5. In the reliefs claimed in the present suit there is no express prayer for setting aside the sale although the sale had taken place before the suit was instituted. But there can be no doubt that the object of the suit is substantially to avoid the sale.

6. The main point urged on behalf of the plaintiff is that there was no personal liability of the surety to pay the money so long as it was not impossible to recover the amount from the property covered by the security bond. Section 47, Civil P.C., cannot in terms apply to a surety. It applies to parties to the