' This revision petition is directed against the judgment, dated 21-4-1993 passed by the learned Civil Judge, Mianwali, whereby in the execution .Of the money decree, passed against Agent Domez Borie, a warrant of attachment was issued against the petitioner Bank.
2. The relevant facts are that the respondents Nos.1 and 5 and predecessor-in-interest of respondents Nos.2 to 4 filed a suit for recovery of sum of Rs,3,54,253 against one Agent Doniez Borie; a French Firm engaged in the construction of Chashma Barrage. The plaint in the suit filed by the respondents proceeded on the ground that the said respondents being subcontractors had carried out certain wooden works but were not paid by the said Agent Domez Borie and that they were entitled to recover the afore-stated amount from the said Agent Domez Bone. During the pendency of the suit, the respondents applied for attachment before judgment of the property belonging to the Agent Domez Bork. The application filed in this behalf was disposed of basis of joint statement of learned counsel for the parties where it was agreed that Agent Domez Bork shall deposit a security bond to the satisfaction of the court for the payment of the disputed amount, if ultimately decreed by the Court failing which the properties mentioned in the list annexed with the application shall be deemed to have been attached. The bond was agreed to be filed within 15 days of the order dated 3-7-1971. It appears from the record that Agent Domez Borie did file a security bond in its name and on its behalf on 1st of September, 1971 but on being objected to by appellants Nos.1 and 5 and predecessor-in-interest of respondents No, 2 to 4 that principal party cannot also be the guarantor so as to bind itself as security, the Agent Domez Borie was directed by order dated 14-9-1971 to furnish the security bond as originally agreed between the parties. It appears that Agent Domez Borie could not furnish the said bond within the time fixed by the court and applied for extension in time. It was thereafter that learned counsel for the Agent Domez Borie made a statement that they shall furnish a bank guarantee for the payment of the suit amount, if decreed ultimately in favour of the plaintiffs. It was on the basis of this statement which was also agreed to by the counsel for the plaintiffs that the court directed that the requisite security bond as prayed by Agent Domez Borie be furnished within 7 days from the order dated 2-10-1971 failing which the properties mentioned in the list annexed with the original petition shall be deemed to have been attached. Consequent thereupon a surety bond (as described in the bond itself) was furnished by Habib Bank Limited on 5-3-1974 which was accepted by the learned trial court, whereafter proceedings in the suit continued till it was dismissed by the learned trial court vide its judgment and decree dated 5-3-1974. The learned trial Court while dismissing the suit of the plaintiffs did also observe that the surety bond furnished by the defendant during the pendency of the suit is released. Agent Domez Borie applied to the learned trial court at Mianwali, for return of the surety bond as according to them, they were paying interest unnecessarily. The said application came up for hearing before the learned trial Court in the absence of the plaintiffs in the suit when the learned trial Court proceeded to release the surety bond on the presentation of a certified copy of the same. The Agent Domez Boric having supplied the copy of the surety bond retrieved the original bond and presumably got himself and his surety discharged of the liability.
3. The plaintiffs/respondents preferred an appeal to the High Court from the decree of the trial Court dismissing their suit which was allowed by a Division Bench of this Court on 22-12-1992. The judgment of the High Court was not assailed any further and has since attained finality.
4. It appears that the judgment debtor had left Pakistan in the meanwhile and was no more available for the satisfaction of the decree passed by the High Court, therefore, the decree holder applied for the execution of the decree against the surety i,e, Messrs Habib Bank Ltd. The said Bank, however, denied its liability for payment of the decretal amount on the basis of surety bond as also on the ground that they being not a party to the suit could not be held responsible to satisfy the decree.
5. It was vide order dated 21-4-1993 that the objection was turned down by the learned trial Court and warrant for attachment of the property belonging to the Habib Bank Ltd ordered to be issued.
The said order has been assailed in the present revision petition primarily on the ground that Habib Bank Ltd., being not a party to the original suit or appeal, no coercive proceedings in the execution of the decree passed against Agent Domez Borie could be taken much less a warrant could be issued against them. The additional ground could be issued against them. The additional ground was to the effect that the learned trial Court having dismissed the suit simultaneously released the surety bond furnished by the petitioner Bank thus, discharging the surety, therefore, the petitioner Bank is not liable to pay any amount of the decree passed against Agent Domez Borie.
6. The petition has been contested on the ground that Habib Bank Limited, having stood surety for Agent Domez Bode, is liable to pay the decretal amount, for the said surety bond shall be deemed to be in force till the litigation between the parties was terminated voluntarily or involuntarily or set at rest by judgment of any Court. It was then maintained that appeal being continuation of the suit, the surety remained bound till such time that the appeal was decided. It was lastly urged that the petitioner having contumaciously denied its liability was further liable to pay damages or the interest on the decreed amount which the plaintiffs would have ordinarily earned.
7. 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 Bode 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 passed 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 coextensive 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. Ramchandra Anna Pai AIR 1920 Born. 331 and Parkash Chand Mahajan v. Madan Theatres, Ltd. AIR 1936 Lah.
463.
8. As far the plea that the surety bond was furnished till the stage of the suit only and since it was released by the learned trial Court while dismissing the suit, therefore, the petitioner Bank did not remain liable to pay the decretal amount, it would be appropriate to refer to the joint statement of the counsel which was made in regard to the disposal of the application under Order XXXVIII, Rule 5, C.P.C., which is as follows:- "The application under Order 38, Rules 5 and 6', C.P.C. May be disposed of in the following manner.
The defendant shall deposit security bond to the satisfaction of the Court for the payment of the amount of Rs,3,54,253, if ultimately decreed by this Court. The defendant shall deposit the security bond within a period of 15 days from today and in the event of his failure to do so, the property mentioned in the list annexed with the petition shall be deemed to have been attached under Order XXXVIII, Rules 5 and 6, C.P.C."
' The order passed thereon may also be relevant to understand the dispute as also the disposal thereof which is as under:--- "In view of the joint statement of the counsel for the parties, the application in hand is disposed of in the following manner. The defendant shall deposit the security bond to the tune of Rs,3,54,253 to the satisfaction of this Court as a guarantee for the payment of the suit amount if and when decreed by this Court ultimately. The defendant is directed to comply with this direction of the Court within a period of a fortnight from today failing which the application in hand shall .Be deemed to have been accepted and the property mentioned in the list annexed with the petition shall be deemed to have been attached under Order XXXVIII, Rules 5 and 6, C.P.C."
' As observed earlier, the requisite security bond could not be furnished by Agent Domez Borie within the time fixed by the Court who having applied for the extension in time for furnishing the said security bond did ultimately submit a security bond in his name and on his behalf, which security bond was rejected on the ground that the principal could not also be the surety with the result that Agent Domez Borie was directed to furnish fresh security bond who in turn made a statement through his counsel on 2-10-1971 as follows:-- "Statement of Mr. Muhammad Asghar Khan, Advocate on behalf of defendant--- ' The defendant shall deposit Bank guarantee for the payment of the suit amount of Rs,3,54,253 etc., if decreed ultimately in favour of the plaintiff. The defendant be allowed 7 days' time, for the deposit of security. The Habib Bank Ltd., Chashma Barrage, Kundian, shall be the guarantor. In case, the defendant does not comply with the directions of the Court in respect of the deposit of the security in Court, the property mentioned in list may be deemed to have been attached, before judgment' ."
' The proposal as contained in the above said statement was agreed by the learned counsel for original plaintiffs who in turn also made a statement to the following effect:-- ' Statement of counsel for the plaintiffs:-- "For the proper dispensation of justice, I agree with the statement of the counsel for the defendant.
The defendant may be allowed time (to) deposit the security prayed for." (word in bracket supplied by me).
' The Court then proceeded to pass the following orders:-- "In view of the statement of counsel for the parties and in the interest of justice, I allow the defendant to deposit security bond as prayed by him within a period of seven days from today, failing which the property mentioned in the list annexed with the original petition shall be deemed to have been attached."
' Consequent thereupon the surety bond was furnished by Agent Domez Borie. To complete the background of the dispute, it may not be irrelevant to reproduce the complete form of the surety bond furnished by the petitioner:-- "Whereas at the instance of Atta Muhammad etc., the plaintiffs in the above suit, Domez Borie, Chashma Barrage, Kundian, Mianwali, the defendant has been directed by the Court to furnish security to the tune of Rs,3,54,253 therefore, we, the Habib Bank Ltd., Chashma Barrage, have voluntarily become surety and do hereby bind ourselves, our heirs and executors, that in case the suit is decreed, the said Bank would pay the decretal amount in case the principal fails to pay the decretal amount and in default of his so doing we, bind ourselves, our heirs, and executors to pay the said Court at its order, the said amount of Rs,3,54,253 or such amount not exceeding the said sum as the said Court may adjudge.
' Witness my hand at______ this day_____ of October, 1971.
' Witnesses:-- (Sd.) (1) Major Abdur Rehman (Retd.) Dumez Bork, Kundian. Home Address Village and Post Office Mohri, Tehsil Kharian, District Gujrat. (Sd.) (2) Muhammad Asghar Khan, Advocate, Mianwali.
' For Habib Bank Ltd., Chashma Barrage Colony, District Mianwali, West Pakistan.
(Sd.) Manager (Sd.) Officer ' Interestingly enough, the original security bond is also available on the file which appears to have been impounded by the Inspector of Stamps, Board of Revenue, Punjab on 28-3-1972. It reads as follows:-- "Whereas at the instance of Malik Atta Muhammad and another, plaintiffs in the above suit, Dumez Borie, the defendant has been directed by the Court to deposit the security bond to the tune of Rs,3,54,253 as a guarantee for the payment of the suit amount if and when decreed by the Courts of Pakistan. Therefore, we, the Dumez Borie acting through its Agent G. Thievent presently resident of Chashma Barrage Colony, District Mianwali, do hereby guarantee the payment of Rs,3,54,253 or such portion thereof as may be sufficient to satisfy the decree as and when passed by the Courts of Pakistan and further bind ourselves to produce and place at the disposal of the Courts property of the value of Rs,3,54,253 or of such portion thereof as may be sufficient to satisfy decree as passed."
' In witness whereof we, the Dumez Borie have set our hands at Chashma Barrage Colony Dumez Bone on the 1st day of September, 1971.
(Sd.) For Dumez Borie Acting Agent J. Houdrw Witnesses.
(Sd.) (1) Major Retd. Abdur Rehman, Village and Post Office Mohri, District Gujrat, Tehsil Kharian.
(Sd.) (2) (M.A. Fayyazee). House No,941 Mohallah Jahangirabad, Qila Sheikhupura.
9. The question which falls for determination is that whether the surety bond furnished by the Bank was to ensure till the decision of the learned trial Court or it remained in force till the disposal of the lis finally. The answer is not very difficult to find. In point of fact recitals of the bonds as also the circumstances leading to the execution thereof are to be looked at to arrive at the conclusion as to what were the intentions of the parties at the relevant time. Agent Domez Bone was a foreign consultant and construction firm, who had been granted contract for the construction of Chashma Barrage. It was one and the only contract granted to the firm who was not expected to stay in Pakistan in the ordinary course of business till after the completion thereof while the time likely to be taken in litigation was definitely longer, therefore, the first security bond which was furnished by the firm recited as follows:-- "Therefore, we, the Domez Borie acting through its Agent G. Thievent presently resident of Chashma Barrage Colony, District Mianwali, do hereby guarantee the payment of Rs,3,54,253 or such portion thereof as may be sufficient to satisfy the decree as and when passed by the Courts of Pakistan and further bind ourselves to produce and place at the disposal of the Courts property of the value of Rs,3,54,253 or of such portion thereof as may be sufficient to satisfy the decree as passed."
The intention of Agent Domez Boric is manifest from the recitals of the security bond furnished by them. It was meant to ensure till the disposal of the lis finally for it specifically recites:-- "to satisfy the decree as and when passed by the Courts Pakistan".
' The said security bond was rejected by the Court because of technical objection that the principal could also not be the surety with the result that Agent Domez Borie offered to furnish bank guarantee, the terms whereof could not be any different than the one which were agreed to earlier and in order to appreciate the same, the statement of their learned counsel recorded on 2-10-1972 may be referred with advantage for it is stated therein:--- "The defendant shall deposit Bank guarantee for the payment of the suit amount of Rs,3,54,253 etc., if decreed ultimately in favour of the plaintiffs."
' Based on that is the order of the. Court which reads as follows:-- "In view of the statement of counsel for the parties and in the interest of justice, I allow the defendant to deposit security bond as prayed by him within the period of 7 days from today."
' It was argued with reference to the words "if decreed ultimately" that they were indicative of the fact that the surety bond was to ensure till the determination of the dispute between the parties and that in any case the words used in the bond are very material they read: "Therefore, we, the Habib Bank Ltd., Chashma Barrage, have voluntarily become surety and do hereby bind ourselves, our heirs and executor that in case the suit is decreed, the said Bank would pay the decretal amount in case the principal fails to pay the decretal amount and in default of his so doing we bind ourselves, our heirs and executors to pay the said Court at its order, the said amount of Rs,3,54,253 or such amount not exceeding the said sum as the said Court may adjudge."
'
10. The background as afore-stated coupled with the statement of learned counsel for the parties followed by the words of the security bond as also the surety bond manifestly establishes that the surety bond was to enure till the determination of lis finally. Learned counsel for the respondent very aptly relied on Raj Reghubar Singh and another v. Jai Indra Bahadur Singh AIR 1919 PC 55 (from Oudh)) to argue that while construing the tenure of surety bond, the words and recitals of the bonds must be taken into consideration to gather the intention of the executant of the said bond.
There is much force in the argument of learned counsel for the respondent for it is well accepted that in order to interpret an agreement, it is necessary to see the intention of the parties as can be gathered from the circumstances leading to the contract itself and the words of various clauses used therein. A bare reading of the bonds furnished by Agent Domez Borie as also H.B.L. Would lead to one and the only conclusion that it was to ensure till the time that the lis was finally determined.
11. On the legal plane, it is well accepted that the appeal is continuation of the suit, therefore, it was rightly maintained that the liability of surety revived during the appeal and could be enforced against the surety because the appeal itself was accepted. This argument also gained further support from the words and recitals used in the security bond. The said aspect apart, it would be seen that the question fell for determination in many cases and was answered time and again in view of the various dimensions of the same. As far example; there were cases of dismissal in default which were restored and decreed ultimately. It was held that the surety's liability remained unaffected for it revived with the revival of the suit. The cases of Pindi v. U. Thaw Ma and another, AIR 1931 Rang. 281(2), Tavvala Veeraswami v. Pulim Ramanna and others AIR 1935 Mad. 365 and Chhotey Lal and another v. Sohrab Ali Khan and another AIR 1925 Oudh 592 may be referred. The question was also considered from the angle that the suit having been decreed at the first stage, subsequent dismissal of the appeal would not affect the liability of the surety if the suit was ultimately decreed. Reference may be made to C. Soon Thin v. K.S.A.V. Chettyar Firm AIR 1936 Rang.
342. Another angle of the case which was more or less akin to the present case was examined in Daggupati Nayudamma v. Sait Sivaraji Dharmachand Kottuvaru and another AIR (30) 1943 Mad.
515 wherein the suit having been dismissed, review was granted and it was held that attachment before judgment stood revived. The real question which was grilled by the learned counsel for the parties and was argued with flair was to the effect that the trial Court having dismissed the suit, the liability of the surety ceased there and then even without passing an order in that regard while in the instant case an order had been passed by the learned trial Court thereby discharging the surety of its liability. Reliance was placed on D. Manackjee v. R.M.N. -Chettyar Firm AIR 1927 Rang.
310, Balaraju Chettiar v. Masilamani Pillai and others AIR 1930 Mad. 514, Gollamudi Venkatasubba Rao v. Chaparala Rosayya and another AIR 1915 Mad. 653 and Shankar v. Ram Kishen AIR 1915 Lah.
217. Learned counsel for the respondent on the other hand relied on Iranguada Shidramgauda Patil v. Irbasappa Gangappa Dalal and others AIR 1927 Bom. 84 and Full Bench decision of Thampi Muhammad Abdulkhadhir v. Padmanabha Pillai Parameswaran Pillai AIR 1952 Tr.C.
414.
12. The question as to whether attachment before judgment necessarily ceases when the suit is dismissed by the Court of first instance has remained subject-matter of many decisions of various High Courts and even in spite of Full Bench decision of the Madras High Court reported as Balaraju Chettiar v. Masilamani Pillai and others AIR 1930 Mad. 514, the controversy did not come to an end for it was raised time and again and lot of head scratching was done when another Full Bench in the Indian jurisdiction was formed in the High Court of Travancore Cochain to consider the question all over again in the case reported as Thampai Muhammad Abdul Khadhir v.
Patmenapha Pillai Parameswa ran Pillai AIR 1952 Tr.C.
414. The Full Bench as formed reviewed almost all the cases on the subject and finally held:-- "Attachment before judgment which ceased to be in force with the dismissal of the suit will revive when the decree dismissing the suit is subsequently reversed and a decree in the plaintiffs favour is passed, even by the same Court or by a superior Court and this revival will be in force from the date on which the attachment before judgment is effected as provided for in the C.P.C."
13. The rule afore-noted was laid down after reviewing the whole case law on the subject with particular reference to the dictum in the -cases of Pindi v. U. Thawa Ma and another, Chotey Lal and another v. Sohrab Ali Khan and another and that of Duggupati Nayudamma v. Sait Sivaraji Dharmachand Kottuvaru and another noted supra for in the earlier mentioned three cases it was held that the surety's liability was not affected by the dismissal of the suit in default for it revived with the revival of the suit while in the latter mentioned case review was granted and it was held that the attachment before judgment was also revived with the revival of the suit. The underlying idea of the rule laid down in the cases afore-noted was, therefore, extended to the case where the suit itself had been dismissed on trial but was decreed on appeal. In this scenario, it was held that, though, attachment effected at the primary stage had ceased with the dismissal of the suit but it revived on the decretal of the suit in appeal or by the same Court and this revival shall be considered to be in force from the date on which the attachment before judgment was effected as provided for in the Civil Procedure Code. The rule afore-noted besides being one of wisdom and in accord with, law is one of the dimensions of the age old principle that appeal is continuation of the suit, therefore, I respectfully follow and adopt the reasoning thereof.
' There is another aspect of the matter which need to be attended to for it was also argued that in the instant case an order was passed by the trial Court thereby discharging the surety from its liability. This aspect of the matter may not detain me any longer because it has already been held that in the statement made by the learned counsel for Agent Domez Borie as also the subsequent bond executed by H.B.L., the liability was incurred till the determination of the lis finally. In the realm of law, it has been so held that while it is true that attachment effected at the primary stage of the suit ceased with the dismissal of the suit but it revived with the reversal of the decree of dismissal by the appellate Court, therefore, the order discharging the surety would also not stand in the way of executing, the decree against the surety. Above all, the act of the Court could not prejudice the rights of the parties as were available to them under the law and facts constituting their cause. The extent of liability was very well-known to Agent Domez Borie as also H.B.L., who stood surety for them. Needless to add that the liability of the surety is always co-extensive with the principal.
14. This brings me to the question as to whether the petitioner should be burdened with damages or be directed to pay interest on the decretal amount for according to the respondents they had unnecessarily and without any lawful justification delayed the payment of decretal amount. It was argued that since this Court is exercising revisional jurisdiction which is supervisory in its nature, therefore, the respondents should be awarded damages or interest on the decretal amount, as ancillary relief, as the case may be, from the date of institution of the suit till recovery. I am afraid the request as such is misplaced, therefore, the same may not be granted. The suit was dismissed by the learned trial Court while the appeal filed against the decree of dismissal was accepted with costs. The Court decreeing the suit accepted the appeal with costs but did not grant the petitioner damages or any interest. It was thereafter that the respondents applied for the execution of the decree and the present revision has arisen out of the execution proceedings, therefore, it would not be lawful for this Court to go behind the decree. It is no doubt true that this Court while exercising power under section 115, C.P.C. Can pass such orders as it thinks for keeping in view the facts and circumstances of each case but it is equally true that such orders are to be passed within the bounds of law. In the instant case the decree granted by the appellate Court was sought to be executed in the year 1993 when it was objected to and the present revision was taken to this Court.
As observed earlier the H.B.L., had bound themselves to pay the decretal amount in the event that Agent Domez Boric failed to pay the same and this liability continued till the disposal of the lis finally as is evident from the recitals of the bonds executed by them, therefore, they are obviously liable to pay the decretal amount but apart from the factual findings afore-noted; it has even been held on the legal plane that the liability of the surety which ceased with the dismissal of the suit stood revived when the suit was decreed, therefore, from 21-4-1993 onward the petitioner, could not deny its liability or for that matter refused to pay the decretal amount by maintaining that since they had been discharged by the first Court, their liability ceased for all times to come. This denial was not only illegal but also unjustified. The respondents had been deprived of the fruits of decretal amount because of this denial while the rupee value is enormously depreciated during the years that the said amount remained unpaid. In any case the respondents could have ordinarily earned profit on the amount decreed in their favour had the same been paid to them, therefore, they are entitled to interest on the decretal amount @ 14% per annum from 21-4-1993 i,e, the date of decree till such time that the same is realised. Reference in this behalf may be made to Pakistan Railways through its General Manager v. Javed Iqbal 1995 SCMR 446 and K.M.C. And another v. Lal Muhammad 1997 CLC 2022.
15. There is yet another aspect of the matter which may also be noted i.e this Court at pre- admission stage of this revision left it to the discretion of the petitioner to deposit the decretal amount and simultaneously directed if such an amount is deposited, its disbursement shall be regulated by a further order from this Court. The case was ultimately admitted for regular hearing on 11-7-1993 when it was reported by the petitioner that the decreed amount had been deposited in the trial Court. Learned counsel for the respondents prayed for its disbursement while the said prayer was opposed by the petitioner, resultantly, it was ordered that the C.M. For temporary injunction may be set down for hearing. The said C.M was, however, not fixed and the case was adjourned which was subsequently transferred to this bench when the learned counsel for the parties desired that the main case should be heard rather than the application. All said and done, even though the decretal amount was deposited in Court by the surety but the same could not be disbursed to the respondents because of adamant attitude of the petitioner/surety with the result that the respondents remained deprived of the fruits of the decree as also profits which they could have earned therefrom, therefore, the petitioners are rightly held liable to pay the profit/interest @ 14% per annum from the date of decree i,e, 21-4-1993 till its realization.
16. In the circumstances, learned counsel for the petitioner has failed to satisfy me that the learned executing Court has proceeded with any material irregularity amounting to illegality in the exercise of its jurisdiction while issuing warrant of attachment against the petitioner. In result this petition is found to be meritless, therefore, the same is dismissed with costs.