JUDGMENT

Harrison, J. - The question referred to this Division Bench by Jai Lal, J., is the method in which the liability of a sapurdar can be enforced, a sapurdar being a person to whom goods attached in execution of a decree are entrusted in accordance with the rules framed by this Court. The alternative suggestions are that the liability should be enforced in execution proceedings in virtue of Section 145 read with Section 47, Civil P.C., and that a regular suit should be instituted in the ordinary way, after assignment of the bond by the Court to the decree-holder.

2. On two occasions Single Judges of this Court in Darbari Mal v. Kanshi [1919] 60 P.R. 1919 and Nazir Ahmad v Bakhshi Ram A.I.R. 1925 Lah. 412, have followed the procedure of enforcing the liability in execution proceedings. In Darbari Mal v. Kanshi [1919] 60 P.R. 1919 the question was not raised nor considered nor decided. In Nazir Ahmad v. Bakhshi Ram A.I.R. 1925 Lah. 412 it was held that, under Section 145, Civil P.C, a sapurdar was a surety, but the question was not agitated of how he came to fall within the definition. In the Madras High Court there has been some conflict of opinion. The two Judges, who first dealt with the question, differed as to the applicability of Section 145: Subba Reddi v. Veerareddy [1919] 9 M.L.W. 476. Subsequently a Division Bench accepted the view of Sadasiva Iyer J., in Baja of Venkatagiri v. Sura Krishna Reddi [1920] 12 M.L.W. 329 and held that the section did not apply. Finally, a Division Bench, while agreeing that the section was not applicable, held that, in exercise of its inherent powers, the executing Court could go into the matter and dispose of it: A.I.R. 1926 Mad. 1005. The Judicial Commissioner of Nagpur in Khetsi Das v.Harba [1918] 16 N.L.R. 178 and both Judicial Commissioners of Peshawar in 1927 P.L.R. 525 have held that Section 145 does not apply, and the latter Court has gone so far as to hold that property attached in consequence of an application made to the executing, Court by a man holding a simple money decree is not an attachment in execution, a view with which we find ourselves wholly unable to agree On the other hand a single Bench of the Allahabad High Court in Madho Prasad v. Peary Lal A.I.R. 1921 All. 220; has held that a sapurdar is a surety and can be proceeded against as such.

3. Now, the necessary ingredients to be established, before it can be held that the relationship of principal and surety exists, are that there shall be two persons, that the former shall be liable to perform certain duties and the latter shall undertake, in the event of his failing to do so, that he will either perform them himself or indemnify the promisee.. It is urged that he, the sapurdar should be treated as the surety of the bailiff, who entrusted him with the goods, but the handing over of the goods absolved the bailiff from liability under the rules of this Court and, therefore, it cannot be said that the sapurdar's duties begin on the failure of the bailiff to perform any duty. Similarly, it cannot be said that he is a surety of the decree-holder, and the only possible position is that he is the surety of the judgment-debtor. As showing that this is the true position Shagat Govind Das referred us to the form relating to attachment of moveable property in execution of decree for money, being No. 8, Appendix E, of Schedule 1, Civil P.C. In that the following words occur:

These are to command you (i.e. the bailiff) to attach the moveable property of...and unless the said judgment-debtor shall pay to you the said sum of Rs.....together with Rs. the costs of this attachment, to hold the same, until further orders from this Court.

4. What is contemplated, therefore, is in the first place attachment, then payment followed by release of the attached property, and in the alternative, there having been failure to make such payment, the retention of the attached property until the further orders of the Court. In other words, so lon