Law: Code Of Civil Procedure, 1908.

Section: 145, 3

Law: Contract Act, 1872

Section: 128, 129, 133–139

 Summary

The appellants challenged the order of the Executing Court refusing to allow them to withdraw the surety bonds furnished during execution proceedings. The sureties had voluntarily undertaken before the Court that they would produce the judgment-debtor and, in case of his default, would themselves satisfy the decretal amount.

The High Court held that the decree had already attained finality, and the execution proceedings were only for its enforcement. The surety bonds constituted a solemn judicial undertaking, creating binding legal obligations. The Court ruled that the liability of a surety under Section 128 of the Contract Act, 1872 is co-extensive with that of the principal debtor, and Sections 129 and 130, relating to continuing guarantees, were inapplicable because the surety was given for a single, existing, judicially determined liability, not for a series of future transactions.

The Court further held that Section 145 of the Code of Civil Procedure specifically enforces liabilities undertaken by sureties before Courts and does not permit unilateral withdrawal after acceptance. Since neither the Contract Act nor the Code of Civil Procedure provides a right to revoke such a judicial surety, the appellants could not escape liability merely because they later changed their minds.