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Judgment
Chapman, J.—This is an appeal against an order directing execution to proceed against a surety. The judgment-debtor had obtained the stay of execution upon the surety giving security. The judgment-creditor has exhausted his remedies against the judgent-debtor and now asks to proceed against the surety for the remainder of his debt.
The first ground of objection was that the judgment-creditor cannot in execution ask for the sale of the property which the surety pledged. Reliance is bad upon Rule 14, Order XXXIV, which says that "where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit." The order directing the surety to pay is not, however, a decree under the Code except for the purposes of appeal (Section 145). This was, therefore, not a case of a person obtaining a decree for the payment of money. There is no objection to the judgment creditor proceeding with the sale of the property pledged, provided the sale does not purport to be a sale of mortgaged property. The judgment-creditor runs the risk of there being other liens on the property and he also runs the risk of the right of redemption being subsequently held to remain alive--otherwise there is no objection to his proceeding in this manner.
The other objection was that inasmuch as the judgment-creditor had proceeded against the judgment-debtor in respect of other debts, he had done an act which was inconsistent with the rights of the surety. Such a contention appears to me to be quite untenable.
The appeal is dismissed with costs.
Roe, J.
I agree.