JUDGMENT Ryves and Gokul Prasad, JJ.
1. This appeal arises out of execution proceedings. One Sri Lal obtained a decree against Lakhpat Rai for some money and in execution of his decree had Lakhpat Rai arrested and brought to court. Thereupon Rameshwar Das, the appellant, got Lakhpat Rai released from custody on his undertaking to produce him whenever the court required, and gave a surety bond to the court in which he bound himself that on failure to carry out his promise to produce Lakhpat Rai whenever required by the court, he would himself pay the amount decreed against Lakhpat; Rai. This bond was executed on the 8th day of January, 1920. It may be noted here that at that time criminal proceedings were pending against Lakhpat Rai on a charge of embezzlement on the complaint of Sri Lal and in those proceedings Rameshwar Das himself went bail for Lakhpat Rai. The court gave Rameshwar Das one month's time for the payment of the money and directed him to produce Lakhpat Rai on the expiry of the month. The month expired on Sunday the 8th day of February, 1920. On the 9th day of February Lakhpat Rai was convicted by the Criminal Court and sentenced to undergo three months' rigorous imprisonment and to pay a fine of Rs. 1,000 or, in default, to suffer six months' imprisonment. It was also ordered that if the fine or any portion of it were paid, that amount would be paid to Sri Lal as compensation. On the 9th day of February, 1920, Rameshwar Das put in an application to the court, stating that, inasmuch as Lakhpat Rai had been that morning sent to jail it was impossible for him. to produce him in the Civil Court and prayed that he be discharged from his bond. No order appears to have been passed on that application, but subsequently when the decree-holder, Sri Lal, applied for process against the surety the same objection was raised by him and accepted by the executing court. On appeal, however, the learned District Judge has overruled the objection and directed execution to issue against the surety. Hence this appeal.
2. It is argued that the fact that Lakhpat Rai was in jail on the day on which the surety should have produced him was beyond the contemplation of anybody when the surety bond was executed, and that circumstances over which the parties had no control prevented the surety from producing Lakhpat Rai, and reliance was placed on the cases of Krishnan Nayar v. Ittinan Nayar (1901) I.L.R. 24 Mad. 637, Ashiq Ali v. Moti Lal (1907) 4 A.L.J. 437 and Nabin Chandra Hazari v. Mirtunjoy Barick (1913) I.L.R. 41 Calc. 50. In all those cases the circumstance that prevented the surety from carrying out his promise was the death of the judgment-debtor. That was not so here. It can scarcely be said that Rameshwar Das could not have contemplated the possibility, or perhaps even the probability, of Lakhpat Rai being in jail within a month of his executing his surety bond when he knew that at that time criminal proceedings were going on against Lakhpat Rai. We, therefore, agree with the learned District Judge in holding that the rulings relied on do not cover this case.
3. We are informed that Lakhpat Rai has not paid up any portion of his fine and that there is no likelihood whatever of his ever doing so. Be that as it may, it seems to us that if the fine or any portion of if is realized and paid over to Sri Lal as compensation, then to that extent Rameshwar Das will have a right to get a refund from the decree-holder.
4. The result is that the appeal fails and is dismissed with costs.