M uham m ad Faheem W ali. J.-, Petitioners through the instant Civil revision have called in question the vires of Order dated 11.10.2022 of the learned Additional District Judge Mardan at Katlang, whereby application of petitioners for their exoneration from surety bond of respondent No.2/judgment debtor was dismissed, whereas, the application of respondent No.1/decree holder for recovery of decreed amount from petitioners, was allowed.
2. Facts of the case, in brief, are that a decree for recovery of Rs.10 million was passed in favour of respondent No.1 (the decree holder) against respondent No.2 (the judgment debtor). The petitioners stood sureties of the judgment debtor for payment of decreed amount and appearance before the Court. The judgment debtor, who was initially not attending the Court, was produced before the court by the sureties. The petitioners (sureties), thereafter, submitted an application for their exoneration from the liability of surety bond, whereas, the decree holder also submitted an application to recover the decreed amount from the sureties. After filing respective replies, the learned executing Court, vide order dated 11.10.2022, dismissed the application of sureties and allowed the application of decree holder and thereby issued show cause notice to sureties for payment of the amount. Not satisfied with order dated 11.10.2022, the sureties have preferred the instant petition.
3. Arguments of the learned counsel, representing parties, have been heard and record gone through.
4. The record transpires that during the execution petition filed by decree holder (respondent No.1) against judgment debtor (respondent No.2), the petitioner No.1 along with one. Shahjehan Bacha, vide surety bond dated 13.04.2021, stood sureties of the judgment debtor for his production before the court and undertook that the judgment debtor will pay the decreed amount otherwise they will be responsible to pay the same. In this regard the relevant excerpt of the surety bond dated 13.04.2021 for a sum of Rs.50 lac each for two sureties reads as under: (underlined for emphasis)
5. Thereafter the surety Shahjehan Bacha was substituted with another surety i.e. petitioner No.2 with a subsequent bond dated 12.10.2021 in the sum of Rs.one crore. In this bond, the petitioner No.2 become surety of judgment debtor for the amount equivalent to the decreed amount and also undertook the responsibility to produce him before the Court. The relevant lines of the surety bond dated 12.10.2021 are reproduced hereunder: (underlined for emphasis)
6. It is clear from the above extracted paragraph of the surety bond dated 12.10.2021 that the surety has first bound himself for payment of Rs. One crore and in the next sentence he again undertook that in case he fails to produce the judgment debtor, he will individually pay Rs.one crore to the government of Pakistan. Both these sentences depict different liabilities, and same cannot be interpreted for a single purpose of production of decree holder, rather the first sentence is sufficient to place the obligation of payment upon the surety.
7. Moreover, both the said surety bonds are admitted documents, nevertheless, the petitioners seek their exoneration from the liability of payment on the grounds that, the judgment debtor has been produced by them before the Court; besides, the learned counsel for petitioners during course of arguments referred to the affidavits of petitioner wherein they have sworn that they had filed surety bond only for the purpose of production of judgment debtor and they in good faith, thoughtlessly, signed the bonds which were carrying the liability as to payment of decreed amount on behalf of judgment debtor, thus it would be unjust to burden the petitioners for payment of such a huge amount, therefore, application for their exoneration was required to be accepted which has wrongly been dismissed by the learned court below.
8. Whatever the stance of petitioners would be, this court is not in agreement with the stance of petitioners for the reasons; firstly that, both the bonds were produced before the court by the sureties after voluntarily signing the same and now, they cannot deviate from their own acts; and secondly that, the liability took under the bond is enforceable under Section 145 of the Code of Civil Procedure, and nothing is provided therein to deliver any protection to the sureties or make them entitled to get exception from the liability of surety bond. Section 145 CPC, for sake of convenience, is reproduced hereunder:
145. Enforcement of liability of surety.-Where any person has become liable as surety:-
(a) for the performance of any decree or any part thereof; or
(b) for the restitution of any property taken in execution of a decree; or
(c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the Court in any suit or in any proceedings consequent thereon, the decree or order may be executed against him to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall for the purposes of appeal be deemed a party within the meaning of section 47: Provided that such notice as the Court in each case thinks sufficient has been given to the surety.
9. This undoubtedly comprises a personal covenant to pay the decreed amount. Accordingly, the decree-holder may proceed in execution against the sureties under Section 145 CPC to the extent of their liability, as if they were judgment-debtors. Hence, in consequence of default in payment by the debtor, the status of the surety metamorphoses into a debtor. A decree is simultaneous and it is jointly and severally enforceable against the judgment debtor including the sureties; and it is the right of the decree holder to proceed with the execution petition in a way he likes. In this regard Section 128 of the Contract Act, 1872, provides that "the liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract." This means that the liability of a surety, is not less or not more than that of the principal debtor. If the amount payable by the principal debtor is discharged in part, the surety's liability also is pro tanto reduced, and further the liability of the surety is immediate and is not deferred for discharge of remedies by a creditor against the principal debtor, particularly when petitioners themselves, in their respective surety bonds, have made themselves liable for the amount equivalent to the decreed amount.
Mere production of the judgment debtor before the court does not lessen their burden which they undertook on behalf of the judgment debtor. The learned Court below has rightly held both the petitioners liable for payment of the amount and the impugned order does not suffer from any apparent or gross error of law or such palpable infirmity of reasoning or jurisdictional defect which would warrant interference of this Court, exercising its jurisdiction under section 115 of the Code of Civil Procedure.
10. Having given anxious consideration to the submissions made by the learned counsel for the parties and having perused the material on record, and after considering the relevant provisions of the law, this Court finds no merit in this revision petition, which stands dismissed with listed CMA.