The facts leading to the filing of this writ petition, briefly stated, are that Haji Gul Nawaz Ahmad of Muhammad Tahir & Co. Commission Agent Ghalla Mandi, Chishtian, District Bahawalnagar moved an application before the Chairman, Arbitration Board, Market Committee Chishtian for the recovery of a sum of Rs.77405.78 against one Amir Khan alleging therein that the latter brought his agricultural produce for sale to his shop and received in advance the payment of the said amount in the shape of cash, pesticides and fertilizer etc. The Arbitration Board heard the matter and finally by means of their award dated 26-1-1991, granted Haji Gul Nawaz Ahmad respondent No.3 herein a decree for the recovery of a sum of Rs.80,502.02. Respondent No.3 then filed an application for the execution of this decree in the Court of Civil Judge Ist Class, Chishtian on 4-2-1991 and during the execution proceedings Jafar Khan, the present petitioner, stood surety for the payment of the decretal amount by the judgment-debtor and submitted a surety bond in this behalf on 5-8-1991.
Amir Khan died during the pendency of these proceedings. The factum of his death was taken notice of by the learned Executing Court on 23-4-1994 when it was busy hearing arguments with regard to the cancellation of warrant of attachment. The learned Executing Court then observed that Jafar Khan had stood surety for the payment of the amount due regarding which a statement was recorded and also a bond was filed by him. The Executing Court, therefore, directed that the surety should pay the amount due.
2. Jafar Khan surety has challenged this order dated 23-4-1994 contending that it is illegal, without lawful authority, a total nullity in the eye of law and of no legal effect.
3. Both the Arbitration Board respondent No.1 and Haji Gul Nawaz Ahmad respondent No.3 have contested this writ petition most vehemently.
4. I have carefully gone through the record and have also given my anxious consideration to the arguments addressed at the Bar in the light of the law on the point.
5. It has been contended by the learned counsel for the petitioner that it was on 5-8-1991 that Jafar A.I Khan had submitted a surety bond, certified copy of which is Annexure F, making himself and his property liable for the payment of the amount due i.e. a sum of Rs.80,502.02 in case the judgment- debtor failed to make the payment of the same within the stipulated period but he stood discharged of his liability in view of the subsequent happenings. For this he has drawn the attention of the Court to the orders dated 5-9-1991, 7-9-1991 and 9-9-1991 available on the original file. The judgment-debtor was present inside the Court room on 5-9-1991. The learned Executing Court observed that he had failed to make any payment by then out of the decretal amount in spite of his statements recorded on 3-8-1991 and 5-8-1991 and also the surety bond filed on 5-8-1991. He, therefore, directed that he be taken into custody and sent to the civil prison. This order was complied with. He was again produced before the Court on 7-9-1991 on which date the judgment- debtor prayed for an adjournment to make the payment of the decretal amount. Since the record was against him, his prayer was not acceded to by the learned Civil Judge, Chishtian and he directed that the judgment-debtor be kept in custody for a further period of two days and produced before the Court on 9-9-1991. On that date, the judgment-debtor who was produced "in custody made the payment of a sum of Rs.5,000 and agreed to make the payment of another sum of Rs.35,000 up to 15-10-1991 for which he requested for time. He also undertook to make the payment of the remaining amount in instalments. The learned Civil Judge after observing that the brothers of judgment-debtor namely Sikandar A.I and Ghulam Farid were also present with him and they also had made themselves responsible for making payment according to this arrangement acceded to the request of the judgment-debtor. A sum of Rs.5,000 paid by the judgment-debtor was directed to be kept in Madd-i-Amanat for the decree-holder. The judgment- debtor was then allowed to be released and the case was adjourned to 15-10-1995 for the payment of a sum of Rs.35,000. It was also observed by the learned Civil Judge that in the eve of the failure of the judgment-debtor to make the payment of Rs.35,000 as agreed, the entire decretal amount would be recoverable in lump sum. This order passed on 9-9-1991 bears the signatures of Ghulam Farid, Sikandar A.I and the judgment-debtor Amir Khan besides one other person perhaps named Muhammad Tariq, thereunder. It also appears that Muhammad Tahir decree-holder received this amount of Rs.5,000 on 10-9-1991 from the Naib Nazir. Muhammad Tahir decree-holder was identified before the Civil Nazir, Chishtian at the time of payment of this amount by his counsel Sh.
Anees Ahmad, Advocate.
6. Relying on these orders passed by the learned executing Court from time to time, the learned counsel for the writ petitioner has urged that the petitioner stood discharged of his liability. He has placed reliance in this behalf on what has been laid down in Chhakkan Ram v. Udho Das AIR 1939 Lah. 368, Appul Gafur v. Mannalal Agarwala and others AIR 1927 Cal. 239, T. N. & Q. Bank Ltd. v.
Official Assignee, Madras AIR 1944 Mad. 396 and Narayan Ramchandra Bhagwat v. Markandya Tukaram and another AIR 1959 Bom. 516.
7. On the other hand, Ch. Abdul Sattar, learned counsel for respondent No.3 has relied on Arura v.
Haveli Ram and another AIR 1929 Lah. 435 a surety in case of arrest before judgment could apply for discharge under Order 38, Rule 3 but a surety for due performance of a decree could not be discharged. He has thus urged that Jafar A.I petitioner cannot claim to have been discharged of his liability. .
8. Although none of these authorities cited at the bar has a direct bearing on the facts of the present case but the principle laid down in the judgments relied on by the learned counsel for the petitioner does help him in claiming that the petitioner stands discharged of his liability.
9. In AIR 1927 Cal. 239, A was arrested before judgment and B became a surety for him. The surety bond provided that if a decree was passed against A and the decretal amount was not realized from him, B would be liable for the payment of the amount. Eventually, a compromise decree was passed by which A was given certain period for the payment of amount. It was held that as the decree that was passed, was not capable of immediate execution the surety was no longer liable for the payment of decretal amount. Similarly, in AIR 1939 Lah. 368, judgment-debtor upon being arrested in execution of a decree a third person stood surety for his appearance. After the objections of the judgment---debtor were dismissed, adjournments from time to time were given to him for paying as much amount as he could. After making some payments, the judgment- debtor ultimately applied to the Court under Order 21, Rule 40, C.P.C. To the effect that he was unable to pay any more by reason of his poverty. A date was fixed for the decree-holder to reply to the application of the judgment-debtor but the judgment-debtor was not specifically asked to be present on that date. On the day so fixed the judgment debtor being absent, the decree-holder applied to be allowed to execute the decree against the surety. It was held that there was no default which rendered the surety liable to pay the decretal amount as the personal attendance of the judgment-debtor was not necessary and neither required on the date fixed and the adjournments were not given with the consent of the surety. In AIR 1944 Mad. 396, it was held that on creditor's compounding with or granting time to debtor without surety's consent, the surety stood relieved of his liability.
These judgments when considered together lead me to one and the only conclusion that there being a change in the circumstances in which the surety had undertaken to make the payment of the decretal amount, he stood relieved of his liability. It was not at all with his consent that a sum of Rs.5,000 was received by the decree-holder on 10-9-1991 nor did the surety agree to the payment of a sum of Rs.35,000 on a stipulated date and the payment of the remaining amount in instalments.
10. Learned counsel for both the parties have not at all been able to lay hand on any precedent cases decided in Pakistan. In AIR 1959 Bom. 516 also it was held that there had been a substantial variation in the original contract by reason of which the surety stood discharged. It was also observed in the said judgment, of course after taking into consideration the law cited at the Bar, that though the provisions of sections 126 and 135. To 139 of the Contract Act (and a portion of section 133) do not apply where the bond had been executed by the surety in favour of the Court, the principles underlying those sections do certainly apply. Taking note of what has been laid down in Jagjivandas v. King Hamilton & Co. 33 Bom. LR 709, AIR 1931 .Bom. 337 in which it had been held that the general principle was that the rights of the surety were not to be interfered with without his consent and that giving time to the principal debtor did prejudice the rights of the surety by preventing him from paying off the creditor and then enforcing the creditors original rights against the principal debtor. It was observed that in the instant case by making the decree payable by instalments time was given to the judgment-debtor and as such in these circumstances it would be held that there had been a substantial variation in the original contract by reason of which the surety wag discharged.
11. Following the dictum laid down in these judgments, I am of the convinced opinion that in the present case also no sooner the new arrangement was arrived at the surety bond became unenforceable.
For all these reasons, I accept this writ petition and set aside the order dated 23-4-1994 passed by the Executing Court, with no order as to costs.
12. It may, however, be observed that the surety being the father of the judgment-debtor and as such his Sharie and legal heir shall be liable for the payment of the debt, if any property belonging