( 1 ) THIS is a second Misc. appeal by the surety for the defendant under Order 38 Rule 2 C. P. C. , from the concurrent decisions of the lower Courts, to realise from, him, on the strength of the security bond, the decretal amount payable by the) judgment-debtor respondent No. 2 to the decree-holder respondent No. 1.

( 2 ) THE facts for the most part are common ground and the question is only in regard to the interpretation of the security bond, and the application of Section 145 and Order 38 Rule 2 C. P. C. The special interest of this case is that the decree-holder, having failed by negligence to obtain a bond in terms of the rule, or in the standard form in appendix F (2) to the C. P, C. , has to face the problem of establishing that the security bond, as worded, enables him to realise the decretal amount from the surety.

( 3 ) THE relevant facts are the following : Respondent No. 1 brought a suit against respondent No. 2 and took out a warrant of arrest before judgment where it was going to be served, the appellant came forward and executed a bond. A party may not be bound to use the form given in the schedule, but he should bring out in the bond the operative provision of the law that is applicable. Under Order 38 Rule 2 C. P. C. and in the form No. 2 in the Appendix F to the Civil Procedure Code, the operative provision is :

". . . . . furnish security for his appearance/ at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit. " The relevant part of the appellant's bond is : "i Sardarsingh stand surety for the defendant. . . . . and I agree that I will see that the defendant shall be present in the Court on every day of the hearing till the final disposal of the suit nkosdk vk[kjh fudky gksus rd- I shall produce him if he fails to attend. If I fail to do so, I shall satisfy from my own property the decree, if any, that might be passed in favour of the plaintiff. . . . . "

( 4 ) SOME time afterwards, the suit was dismissed for default but was subsequently restored on the petition of the plaintiff. Ultimately the trial Court passed a decree. The defendant not having satisfied it, it was put into execution against the surety who objected on two grounds, firstly that in terms, his bond was only to guarantee the attendance of the defendant during the suit; and not his appearance in any execution case, or to do any thing after the disposal of the suit and before the satisfaction of the decree. The second ground is that when the suit was dismissed in default the bond too stood automatically cancelled; and its subsequent restoration to the file did not revive the bond.

( 5 ) POINT No. 1. : A bond, like all instruments creating a liability, must be construed strictly. In this case the bond does not mention Order 38 Rule 2 C. P. C. and it would therefore be unnecessary to examine whether, in spite of the loose wording all the contents of the rule would be read by implication. The case reported in David Johnston v. Dwarka Pershad. AIR 1928 Lah 696, illustrates bow strictly a bond is to be interpreted. The judgment-debtor having been arrested, the surety agreed to produce him on a particular date. It being a holiday and there being no notice on the surety to produce the judgment-debtor on any other date, the Court held that he should not be proceeded against for the absence of the judgment-debtor. In Laxmichand v. Gokal Prasad, AIR 1951 we have a case not dissimilar to the present one. The defendant having been arrested under Order 38 Rule 1, C. P. C. , a security bond was executed in loose language not incorporating all the elements in Rule 2, It was to the effect : "i shall produce defendant Gordhansingh on every date of hearing gj is'khij and I shall see that he docs not transfer his property. If he does not attend 011 any 'peshi' or disposes of his property, then I shall myself pay the sum of which is the value of the subject-matter