The background of the instant E.F.A. was that respondent No.1 instituted recovery suit of summary nature on the basis of some cheque against Barash Ali, ascendant of respondents No.2a to 2i, who in his life appeared before the learned Trial Court and submitted application to defend the suit, which having been granted subject to furnishing of surety bonds, the appellants jointly stood as such and ultimately the suit was decreed. Thereafter, the learned Executing Court vide order dated 07.10.2017 proceeded to initiate proceedings for its satisfaction against the appellants, which was contested before the same Court by the appellants/sureties on the sole ground that unless the principal debtor or his legal heir(s) is/are proceeded against in the first instance, the recovery proceedings against the appellant was not warranted, but the objection was turned down on 02.12.2017. The appellants carried both the said orders before this Court through this Appeal.
2. Arguments heard and record perused.
3. Admittedly , the appellants were not the judgment debtors, but the moment they at their own submitted surety bonds and undertook while recording their statements to the following ef fect:-:- they bounded themselves and subsequently it was not open for them to wriggle out of it. Thus prior to discharge of their liability, they had no right to dictate terms to the creditor and asked to pursue his remedy against the principal in the first instance. The surety under the law has no right to restrain an action against him rather having stood guarantor, he had substituted himself for his principal and afterwards it was the choice of the decree-holder to proceed any of them severally or both of them jointly. The crux of the contract of guarantee is that it binds the surety in a co-extensive manner. The reason being that leave to contest the suit was accorded only on the surety of the appellants and in absence, the Court might have not allowed the judgment debtor to proceed with the suit, which would have been decreed on that very first day, whereas on the fulfillment of condition, the trial was conducted for years and when the stage for realization of the decree reached, it was tried to be avoided for the aforenoted objection. The appellants at their own accord had stepped into the shoes of the judgment debtor, as such they were equally responsible for the satisfaction of the decree. Reliance is placed on the judgments reported as Mirza Anwar Ahmad Vs. Habib Bank Ltd., Faisalabad and others (1989 CLC 2441), Messrs State Engineering Corporation Ltd. Vs. National Development Finance Corporation and others (2006 CLD 687), Muhammad Bashir through Legal Heir Vs. Zarina Bibi and others (PLD 2014 Lahore 429), Rafique Hazquel Masih Vs. Bank Alfalah Ltd. and other (2005 SCMR 72). In the case of M/s. State Engineering (supra) it was held as under:- Section 128 is applicable in the given circumstances. The liability of the guarantor/surety is co-extensive with that of the principal debtor , unless it is otherwise provided by the contract as envisaged in section 128 of the Contract Act, 1872. They are jointly and severally liable to pay the outstanding amount to the creditor . A guarantor cannot shirk from the liabilities incurred by him through the execution of documents.
Almost same has also been concluded in Rafique' s case (supra) and its relevant extract is reproduced hereunder:- The liability of the surety under section 128 of the Contract Act is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract- - In absence of any specific stipulation in the contract, a guarantor cannot take up the plea that the Bank should enforce the liability against the principal debtor before proceedings against the guarantor. The reason being that the Bank grants loan only on the guarantee and in absence of letter/contract of guarantee the Bank may not have sanctioned the loan.
Besides, section 145 of the Code, 1908 is more than clear on this point.
4. The emphasis of learned counsel for the appellants that the moment, Barash Ali, judgment debtor died for whom his clients became surety , their liability stood absolved was not well founded. This proposition has already been clinched by this Court in case reported as Maula Dad Vs. Wadhawa Singh and others (A.I.R.1924 Lahore 428) wherein it was concluded that:- ..The surety rendered himself liable for any decree which might be passed against his principal and in consideration for his doing so the plaintiff dropped his proceedings against the very tangible sum of Rs.1,400. The mere fact that the principal has since died does not absolve the surety from perfor ming his contract, and, following Chandulal Dalsukhram v. Jehang-bhai Chhotalal (1). I find that there is no force whatever in the objection, and I dismiss the appeal with costs.
5. The next grouse of the appellants that they were not party to the original lis, as such decree was not executable against them, has also been dealt with by this Court in cases reported as Khan Muhammad Ishaq Khan Vs. The Azad Sharma Transport Co. Ltd. and others (PLD 1953 Lahore 22), Mrs. Muhammad Shafi through Agent Vs. Sultan Ahmed (2000 CLC 85) and Habib Bank Limited Vs. Malik Atta Muhammad and 4 others (2000 CLC 451). In latter case it was held as under:- As far the objection that the petitioner Bank being surety was not a party to the original suit or appeal, therefore, the execution of the decree passed against Agent Domez Borie could not be taken out against them, suffice it to refer to section 145, C.P.C. whereby it is provided that even though a surety is not arrayed as a party to the suit or appeal, the decree against the judgment debtor can also be executed against the surety and rightly so because it is well accepted that the liability of the surety is co-extensive with the judgment debtor and continues till such time that the decree is either satisfied by the judgment debtor or by the surety. The provision of section 145 C.P.C. eminently makes it clear that such surety shall, for the purpose of appeal, be deemed to be a party within the meaning of section 47, C.P.C. The expression "deemed to be" manifestly refers to the law whereby a thing is presumed to be in existence while in fact it is not in existence. A surety need not be made a party to the proceedings until execution is sought against him. If any authority is needed, reference may be made to Khan Muhammad Ishaq Khan v. The Azad Sharma Transport Co. Ltd. and others PLD 1953 Lah. 22, Cholappa Gattina Sanna and another v. Rachandra Anna Pai AIR 1920 Bom.331 and Parkash Chand Mahajan v. Madan Theatres, Ltd. AIR 1936 Lah.463.
Hence, learned Executing Court was justified to proceed with the measures for satisfaction of the decree against them. The learned counsel for the appellants is unable to point out any illegality or jurisdictional defect committed by the Court below while passing the impu gned orders. This Appeal having no merit and force is dismissed, with no order as to cost.