A money decree was passed against the judgment debtor, who during execution proceedings presented a surety bond to the effect of payment of decreed amount and appearance before ...............

 A money decree was passed against the judgment debtor, who during execution proceedings presented a surety bond to the effect of payment of decreed amount and appearance before the Court. Later-on judgment debtor failed to appear before executing court who was produced before the Court by the sureties and sureties also applied for their discharge from the liability of surety bond. Their request was declined by the executing court and they filed revision petition before High Court. ---

Held --- Surety bond was voluntarily signed by the sureties wherein they undertook the payment of decreed amount in case the judgment debtor failed to pay the same. The liability took under the surety 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. 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.

(ii) 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 coextensive 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 sureties 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 burden of sureties which they undertook on behalf of the judgment debtor. The learned Court below has rightly held both the sureties liable for payment of the decreed amount.

C.R No. 887-P of 2022
Syed Kalam Shah & another Vs Shafiq-ur-Rehman & another
31-07-2024