Judgement Appeal from a judgment and decree of the Court of the Judicial Commissioner (November 20, 1916), affirming a decree of the Subordinate Judge of Malihabad. The appeal arose out of an application made to the Subordinate Judge under circumstances which appear from the judgment of their Lordships. The application, which purported to be under ss. 47 and 144 of the Code of Civil Procedure, 1908, was against the representatives of Raghubans Kunwar, deceased, as judgment-debtors, and the present appellants, as sureties. It prayed that the judgment-debtors (the appellants being included under that designation) might be declared liable for mesne profits, the liability of the appellants, as sureties, being limited to one lac. The defence of the sureties was, inter alia, that their liability ended at the date of the judgment of March 26, 1903, dismissing the appeal of Sheo Singh. The second and fifth issues related to this defence, and respectively raise the questions whether the sureties were liable under the bond of September 10, 1902, for any of the mesne profits and whether their liability could be enforced in the execution department. The Subordinate Judge delivered judgment on November 21, 1914. On the second issue he held that the sureties were liable to the extent of one lac, whether the mesne profits were deemed to be due under the Order in Council or (as he held to be the case) under the final Order of the Court of the Judicial Commissioner. And on the fifth issue his decision was also in favour of the present respondent. On account of mesne profits he found 3,60,000 Rs. to be due to the present respondent. A formal decree was drawn up giving effect to these conclusions and declaring the liability of the sureties under the bond to the extent of one lac. The Court of the Judicial Commissioner affirmed the decision. The learned judges were of opinion that the liability of the appellants should be determined on the terms of the bond (which is set out in the judgment of their Lordships), and not with reference to the terms of s. 546 of the Code of Civil Procedure, 1882, under which the bond was given. The learned judges were of opinion that the liability of the appellants should be determined on the terms of the bond (which is set out in the judgment of their Lordships), and not with reference to the terms of s. 546 of the Code of Civil Procedure, 1882, under which the bond was given. They, however, considered that the terms of the bond were wide enough to cover an order passed by the Court of the Judicial Commissioner, either in the original appeal or under the subsequent order of His Majesty in Council. 1919. June 30; July 1. Dunne K.C. and E. B. Raikes for the appellants. The Subordinate Judge had no jurisdiction to make the order appealed from. The Court of the Judicial Commissioner had directed him only to find what was the amount of the mesne profits. There was no power under the Code of 1908, which was applicable at that stage of the litigation, to bring the appellants into the proceedings. Sects. 47 and 144 apply only to applications by and against parties or their representatives. Sect. 145, a new section, deals with sureties, but in terms applies only where the surety is personally liable. Upon the true construction of the bond the appellants were not personally liable. The bond could only be enforced by a suit under s. 90 of the Transfer of Property Act, 1882 Tokhan Singh v. Girwar Singh. (( 1905) I. L. R. 32 C. 494.) Further, having regard to the terms of s. 546 of the Code of Civil Procedure, and of the order in pursuance of which the bond was executed, the bond applied only until the then pending appeal had been determined. Prima facie security given pending an appeal relates only to the pending appeal Ranee Birjobtittee v. Pertaub Singh (( 1860) 8 Moo. I. A. 160.) ; Shek Suleman v. Shivram Bhikaji. (( 1887) I. L. R. 12 B. 71.) The decision in Narayan Dev v. Ganjanam Dikshit (( 1873) 10 Bom. H. C. 1.) is distinguishable as the terms of the bond were materially different. In any case the Courts in India were wrong in making a decree against the appellants personally. De Gruyther K.C. and Kenworthy Brown for the respondent. The application was not to bring the property to sale ; a further proceeding was necessary for that purpose. H. C. 1.) is distinguishable as the terms of the bond were materially different. In any case the Courts in India were wrong in making a decree against the appellants personally. De Gruyther K.C. and Kenworthy Brown for the respondent. The application was not to bring the property to sale ; a further proceeding was necessary for that purpose. Upon the application to fix the amount of the mesne profits the sureties were necessary parties, and the order properly limited the liability in their case to the amount covered by the bond. There was power under ss. 47 and 144 of the Code of 1908 to make the decree. Sect. 144 is not part of the execution procedure ; its application is not confined to the parties to the suit. The bond did not name any person to whom the security was given, it therefore could not be enforced by a suit under the Transfer of Property Act. Had the bond been made in favour of an officer of the Court, as was sometimes done under the Act of 1882, he could have assigned it to the respondent who could have sued upon it; that however was not the case here. The bond was by its terms made in pursuance of the order of the Court, and the Court had inherence jurisdiction to enforce it. That jurisdiction is affirmed by s. 151 and was not taken away because there may also have been jurisdiction under s. 145. [Reference was also made to Order xxi., r. 2 Prosunno Coomar Sanyal v. Kasi Das Sanyal (( 1892) L. R. 10 1. A. 166.) and Janki Knar v. Sarup Rani. (( 1895) I. L. R 17 All. 99.)] Dunne K.C. in reply. The only power against a surety under the 1908 Code is under s. 145, which does not apply. There is nothing in that Code corresponding to s. 253 of the Code of 1882. July 29. The judgment of their Lordships was delivered by LORD PHILLIMORE. This is an appeal from the Court of the Judicial Commissioner for Oudh. Thakur Balbhaddar Singh, taluqdar of Mahewa, died in December, 1898, intestate and childless, leaving the taluqa and other property, and leaving a widow, Raghubans Kim war, and a brother, Sheo Singh. July 29. The judgment of their Lordships was delivered by LORD PHILLIMORE. This is an appeal from the Court of the Judicial Commissioner for Oudh. Thakur Balbhaddar Singh, taluqdar of Mahewa, died in December, 1898, intestate and childless, leaving the taluqa and other property, and leaving a widow, Raghubans Kim war, and a brother, Sheo Singh. On his death his brother Sheo Singh took possession of all his property ; but his widow, Raghubans Kunwar, brought a suit against Sheo Singh to recover the property in the Court of the Subordinate Judge of Sitapur, and on August 6, 1902, obtained a decree for possession of the same. After she had obtained this decree the widow applied to be put into possession of the property in dispute, and she was given possession by an order of the Subordinate Judge upon her providing security to restore the mesne profits, to the extent of one lac of rupees. The persons who gave that security are or are now represented by the present appellants. The decision of the Subordinate Judge in favour of the widow was affirmed by the Court of the Judicial Commissioner of Oudh. But on an appeal being presented to His Majesty in Council (( 1905) L. R. 33 I. A. 203.) the decree was varied, and it was declared that the taluka, with its accretions, had passed to the defendant, the brother, though the other property left by the deceased would pass, according to the Hindu law, to the widow. It was referred to the Court of the Judicial Commissioner to ascertain, if there was any dispute, how much of the property formed part of the taluqa, and how much was the private estate of the deceased which would pass to his widow. The Court of the Judicial Commissioner remitted the case for inquiry to the Subordinate Judge, and he rported accordingly ; and thereupon the Court of the Judicial Commissioner decided by decree dated March 4, 1907, that all the villages claimed by the widow except 31 belonged to the taluqa, and that the suit of the widow must now be dismissed except as to these 31. Both parties appealed from this decree to His Majesty in Council, but with some variations immaterial to the present purpose, the decree was affirmed on March 22, 1918. Both parties appealed from this decree to His Majesty in Council, but with some variations immaterial to the present purpose, the decree was affirmed on March 22, 1918. (( 1918) L. R. 45 I. A. 134.) There were, of course, some villages which must belong to the taluqa ; and, in fact, the widow admitted that 117 villages formed part of the taluqa. Possession of them was forthwith given to the respondent, the son of the original defendant, who had by this time died. And on August 21, 1908, the Court of the Judicial Commissioner directed that the Order of His Majesty in Council and its own decree of March 4, 1907, should be sent to the Subordinate Judge, and ordered him to ascertain the amount of the mesne profits of the 117 villages during the period that the widow had been in possession of them, but he was not to make any order for payment until the whole case had been decided. Thereupon, on January 6, 1909, the respondent made an application purporting to be under ss. 47 and 144 of the Code of Civil Procedure, 1908, for fixation of mesne profits and damages. The parties against whom the application was made were the widow and the present appellants, the sureties ; and the relief prayed was that they might be declared liable for mesne profits of the 117 villages, the liability of the sureties being limited to one lac only. The widow put in a defence which it is not material to consider. The sureties filed a written statement, in which they denied that the respondent was entitled to the relief claimed, and pleaded the following additional pleas " 20. The so-called judgment-debtors Nos. 3 and 4 are not liable for the decree of the Judicial Committee of the Privy Council. Their liability ended with the decree of the Judicial Commissioners, dated March 26, 1903, which was in favour of judgment-debtor No. 1. 21. The liability, if any, of the so-called judgment-debtors Nos. 3 and 4 cannot be determined and enforced in execution proceedings.” The Subordinate Judge, on November 21, 1914, decided that there was due from the widow over three lacs of rupees, and that the sureties were liable to the extent of one lac. From this decision the sureties appealed, giving as their grounds "1. 3 and 4 cannot be determined and enforced in execution proceedings.” The Subordinate Judge, on November 21, 1914, decided that there was due from the widow over three lacs of rupees, and that the sureties were liable to the extent of one lac. From this decision the sureties appealed, giving as their grounds "1. That the Lower Court ought to have held that the liability of the appellant as a surety ceased as soon as the Court of the Honourable Judicial Commissioner of Oudh dismissed the appeal of Thakur Sheo Singh on March 20, 1903. 2. That the Lower Court has taken a wrong view of the security bond executed by the appellant, and that according to the correct interpretation of the deed the liability was restricted only to the time when the order of the learned Judicial Commissioner was passed on March 26, 1903, and for due performance of the said order. 3. That it has not been shown by the appellant as to what collections were made by the late-Rani Raghubans Kunwar during the said period, and for this reason there is no definite amount for which the sureties or any of them are liable. 4. That the application against the appellant ought to have been dismissed with costs.” On November 20, 1916, the Court of the Judicial Commissioner dismissed the appeal with costs. Thereupon the sureties, the present appellants, applied for leave to appeal to His Majesty in Council, giving as their grounds "1. That on a correct interpretation of the security bond, dated September 16, 1902, executed by the appellants it should have been held that the liability of the petitioners as sureties ceased on March 26, 1903, when this Honourable Court dismissed the appeal by Thakur Sheo Singh. 2. That the bond ought to have been construed not only with reference to the order of the Subordinate Judge, but also with reference to the terms of s. 546 of the old Code of Civil Procedure corresponding to Order xl., rule 6. of the new Code, interpreted in the form of the security bond given in it. 3. That if the security bond in question had not been filed, execution of decree would have been stayed only till the decision of the case by the Honourable Court. of the new Code, interpreted in the form of the security bond given in it. 3. That if the security bond in question had not been filed, execution of decree would have been stayed only till the decision of the case by the Honourable Court. After that Rani Raghubans Kunwar would have obtained execution of her decree under the orders of this Honourable Court, which was never stayed, and in respect of which no action was taken under s. 008 of the old Code of Civil Procedure/ Leave was given accordingly. In their case on appeal before the Board they raised three points That the appellants had not undertaken any personal liability, but had only charged their estate, that their charge only applied to, and secured, orders passed by the Court of the Judicial Commissioner in deciding the appeal then pending to it. and that the Court had no jurisdiction over them in the present proceedings, and no order should have been made against them in these proceedings. Of these points the first was not specifically raised in either of the Courts below. There is just enough in the general denial of liability and in the general words in the grounds of appeal to make it open to the appellants before their Lordships. It seems probable that the estates charged are so ample that it was hardly worth the while of the sureties to make this point. But as it has been made before their Lordships it must be decided, and in the opinion of their Lordships the true construction of the document is that hv is an instrument of charge only, and not a bond imposing any personal liability, and the decree must be corrected in this respect. The second point, and that which has been principally fought throughout, is whether the appellants became sureties for the restitution of the mesne profits according to the ultimate decision of the Courts, or whether they were only to be liable in the event of the first Court, that of the Judicial Commissioner, deciding against them, and not liable if that Court decided in their favour, though the decree was finally reversed in the Privy Council. Upon this point their Lordships are in agreement with the j Subordinate Judge and the Court of the Judicial Commissioner. The other construction would give a strange result. Upon this point their Lordships are in agreement with the j Subordinate Judge and the Court of the Judicial Commissioner. The other construction would give a strange result. According to it if the Court of the Judicial Commissioner had reversed the decree of the Subordinate Judge, but wrongly reversed it and been itself corrected on final appeal, so that the widow was really entitled to possession and the mesne profits, still the Court of the Judicial Commissioner having decided against her. the sureties would have had to pay to the defendant, who bad no title, the amount of the mesne profits from the date of the original decision to that of the intermediate Court of Appeal. It would be strange indeed if the language of the instrument had been such as to create a kind of wagering contract of this nature ; but there is really no difficulty in the language of the instrument. These are its terms “We are Raj Debi Bakhsh Singh, Raj Raghubar Singh, and Raj Mangal Singh. " Whereas a decree for possession of taluqa Mahewa, etc.. has been passed on August 6. 1002, by the Subordinate Judge of Sitapur, in favour of Rani Raghubans Kunwar, widow of Thakur Balbhaddar Singh, Taluqdar of Mahewa, against Thakur Sheo Singh ; and whereas, for the purposes of delivering possession in execution proceedings, the said Court of the Subordinate Judge has, under order dated August 21, 1902, required the Rani, plaintiff-decree-holder, to furnish security in the amount of Rs. 1,00,000, so that any order that might be passed by the Court of the Judicial Commissioner of Oudh be made binding on the surety for the said sum of Rs. 1,00,000 ; and whereas Thakur Sheo Singh preferred an appeal to the Court of the Judicial Commissioner against the order of August 21, 1902, at the end of August, 1902, and it was dismissed on September 12, 1902, we, the declarants, furnish security for Rs. 1,00,000, hypothecating the following property therefor, and declare that the hypothecated property shall serve as security, and be liable to the extent of Rs. 1,00,000 for carrying out the aforesaid purpose. 1,00,000, hypothecating the following property therefor, and declare that the hypothecated property shall serve as security, and be liable to the extent of Rs. 1,00,000 for carrying out the aforesaid purpose. Wherefore this security bond has been executed so that it may serve as an authority." By this instrument the obligors make themselves liable to the amount of one lac as security for any order that might be passed by the Court of the Judicial Commissioner, not the first order, but any order ; and the ultimate orders of the Judicial Commissioner were that of March 4, 1907, decreeing that the claim of the widow be dismissed as to all but a few villages, and that of November 20, 1916, by which, inter alia, the assessment of the Subordinate Judge finding that the mesne profits amounted to more than three lacs of rupees was affirmed. On this point, therefore, the appellants fail. There remains a matter which has given their Lordships considerable trouble. When this suit began the old Code of Civil Procedure was in force ; but when the application against the widow and the sureties for the recovery of the mesne profits was started, the new Code of Civil Procedure of 1908 had come into force and, as already stated, the application purported to be made under ss. 47 and 144 of that Code. In the course of the judgments in India s. 145 was referred to ; but whatever might have been its effect if the sureties had been personally liable it has no application now that their Lordships have construed the instrument as giving only a charge upon property ; and indeed the application did not purport to rely upon this section. What, then, is the authority for it 1 Sects. 47 and 144 provide for the decision of questions relating to the execution, discharge, or satisfaction of the decree, and for restitution including the payment of mesne profits when a decree has been varied or reversed ; and they enact that any such questions shall be determined in the suit and not by a fresh suit. But these sections apply only to the parties or the representatives of the original parties, and do not apply to sureties. No reliance can, therefore, be placed upon these sections as authorizing the inclusion of the sureties as parties to the application made against the widow. But these sections apply only to the parties or the representatives of the original parties, and do not apply to sureties. No reliance can, therefore, be placed upon these sections as authorizing the inclusion of the sureties as parties to the application made against the widow. The assessment of damages, however, is one to be made once and for all as between the parties to the suit. The sureties are bound by that assessment, and have no right to question it, as was not only admitted, but contended, by counsel for the appellants before their Lordships Board. It is possible that in an extreme case the Court to which application was made to enforce such an instrument of suretyship, if it thought that there had been no real trial of the amount of the mesne profits might, upon terms, admit the sureties to question the amount; but it would be an extreme case, and no such case is made here. So far, therefore, as the applicant sought to have the assessment determined in the presence of the sureties no harm was done, and indeed the sureties need not have appeared. But the questions of their liability upon the instrument, whether they were personally liable, and whether, in the events which happened, it had become applicable, were matters which they were entitled to have determined against them in a regular and authorized manner. The contention for the appellants is that for this purpose there should have been a separate suit to enforce the charge, and that this must have been one according to the procedure provided by s. 90 of the Transfer of Property Act. In order to see whether this is so their Lordships turn to the instrument itself. For a proceeding under the Transfer of Property Act there must be a mortgagor and a mortgagee. Their Lordships have to examine whether in this case there is any mortgagee, any person to whom the security was given. Now, no person is mentioned in the instrument. It recites the decree that the widow has been ordered to furnish security, and then the declarants furnish security by hypothecating their property. Their Lordships have to examine whether in this case there is any mortgagee, any person to whom the security was given. Now, no person is mentioned in the instrument. It recites the decree that the widow has been ordered to furnish security, and then the declarants furnish security by hypothecating their property. The form of an instrument such as this, in the absence of any special form being provided by the Code, and there is no suggestion that there was any such form provided under the Code then in force, must vary according to the practice of the Court. It appears that in the High Court at Calcutta, in instruments of this nature, the parties bind themselves to some named officer of the Court, and that, if the instrument has to be put in suit, either the officer sues, or he, under order of the Court, assigns the security to the party who wishes to avail himself of it ; but this instrument does not purport to bind the sureties to any individual officer or to anyone. It is suggested that they are bound to the Court. But the Court is not a juridical person. It cannot be sued. It cannot take property, and as it cannot take property it cannot assign it. It remains, therefore, that here is an unquestioned liability, and there must be some mode of enforcing it, and that the only mode of enforcing it must be by the Court making an order in the suit upon an application to which the sureties are parties, that the property charged be sold unless before a day named the sureties find the money. This form of procedure is that to which the High Court of Allahabad gave its sanction in the case of Janki Kuar v. Sarup Rani. (LL. R. 17 A. 99.) The new Code of Civil Procedure, that of 1008, provides a special form of security bond to be given during the pendency of an appeal (Appendix G, No. 3). The form shows that it is intended to be given to someone and not to be a mere undertaking to the Court. Whether that someone should be the other party or an officer of the Court is not made clear ; but with this form in use it is not likely that the difficulty which surrounds the present case will arise in future. Whether that someone should be the other party or an officer of the Court is not made clear ; but with this form in use it is not likely that the difficulty which surrounds the present case will arise in future. It appears to their Lordships that the proper way of dealing with the present case is to consider that there are three steps 1. The assessment of the mesne profits to which the sureties need to be parties. 2. The construction of the instrument determining that the property charged is liable as security in the events which have happened. 3. The order that the property be sold unless the sureties pay. It might have been more regular to take the first by itself and without the sureties, and to take the second with the third ; but unless it be that there is possibly some increase of costs, no harm has been done. It is idle to talk of the proceedings as if they had been taken before a Court which had no jurisdiction and no serious objection was raised to the form of procedure ; nor can the appellants point to anything which would show that justice has not been done to them. In the result, therefore, their Lordships think that except as to the matter of the personal liability of the appellants, the decree appealed from is right. The variation which they would propose is as follows “ That the decree of the Court of the Judicial Commissioner dismissing the appeal from the Subordinate Judge should be set aside, and that instead it should be decreed that the decree of the Subordinate Judge should be varied by striking out the words " the two sureties are liable," and substituting the words " the property hypothecated by the instrument of security of September 16, 1002, is liable,” but otherwise affirmed. Their Lordships see no reason to disturb the decrees as to costs in either of the Courts in India but as the appellants have succeeded to some extent there will be no costs of the appeal to His Majesty in Council. Their Lordships will humbly advise His Majesty accordingly.