The liability of a surety in the context of setting aside an ex parte decree is determined by the interpretation of the surety bond and the relevant provisions of the Small Cause Courts Act and the Civil Procedure Code.

Vivian Bose, J—The applicant before me obtained an ex parte decree against one Jagannath in the Court of Small Causes at Betul on 20th December 1932. The judgment-debtor thereupon applied to have the ex parte decree set aside under S. 17(1), Provincial Small Cause Courts Act, and produced the non-applicant as a surety. The ex parte decree was set aside and after trial a fresh decree was passed. The applicant now applies in execution under S. 145, Civil. P.C., against the non-applicant surety. The lower Court holds that the non-applicant is not liable because under the terms of the surety bond he stood surety only till the delivery of judgment. In my opinion this is an impossible construction of the bond. As there is some doubt about the translation, I give the original words so fax as they are material. They are: ''Ye jamanat ta faisla mukhadama fee deta ho.'' If there is any ambiguity in their meaning, then, as the Judges of the Calcutta High Court point out in Mohendranath Banerji v. Satishchandra, 1934 AIR(Cal) 569, quoting a decision of their Lordships of the Privy Council, the bond must be construed in the light of the order directing the security to be given. As the order in this case was passed under the proviso to S. 17(1), Provincial Small Cause Courts Act. the bond must be construed in the light of those provisions. The proviso states that when there is an application for setting aside an ex parte decree the applicant shall at the time of presenting his application ... give security to the satisfaction of the Court for the performance of the decree.

2. The question is what decree does that mean? An ex parte decree or a decree which is later passed in the case. The only decree referred to in the commencement of the proviso is an ex parte decree and therefore when the later sentences of the same proviso refer 'to the decree' it can only mean the ex parte decree which has been referred to in the earlier part of the proviso. If that decree is set aside, it follows the surety is discharged, for, under S. 17(2) the only manner in which the surety may be proceeded against is that provided by S. 145, Civil. P.C., and that allows the decree ''to be executed against the surety''. If there is no decree under which he can be held liable it is obvious he cannot be proceeded against.

3. Section 17(1) states that the procedure prescribed in the Code of Civil Procedure shall, save in so far as is otherwise provided by that Code or by the Small Cause Courts Act, apply in all proceedings in the Small Cause Courts. Therefore it is relevant to construe the proviso to S. 17(1) in the light of similar provisions in the Code of Civil Procedure. When we compare this proviso with the provisions of O. 38, Rr. 2 and 5, the difference between them becomes apparent at once. R. 2 provides that the surety bond shall be for the satisfaction ''of any decree that may be passed against him in the suit''. The second Rule also makes it clear that the security is for a decree which may be passed in the future. Since the ex parte decree here was set aside the surety was discharged. I therefore uphold the order of the lower Court though not for the reasons given by it and dismiss this application for revision with costs. Counsel's fee Rs. 10.

Final Result : Dismissed