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Judgment
In this case a preliminary objection is taken that no appeal lies.
The appeal is from an order directing that the security given by a surety u/s 336, C.P.C. should be realized in execution against the surety.
Section 336 extends the provisions of Section 253 of the CPC to the enforcement of the bond against the surety, and there is a uniform course
of decisions in the case of an order against a surety u/s 253 of the Code that the order is appealable in the same manner as orders passed u/s 244
of the Code in execution of decrees. These decisions must in principle be equally applicable to orders against sureties u/s 336. We, therefore,
overrule the preliminary objection and hold that an appeal lay to the lower appellate court and a second appeal to this Court. The cases cited in
Krishnan Nayar v. Ittinan Nayar ILR 24 M. 637--and Banna Mal v. Jamna Das ILR 15 A 183 do not apply. The former applies to the case of a
surety u/s 349 or at all events not under this section, and this question was not raised or considered. The case of Bunna Mal v. Jamna Das ILR 15
A 183 was an appeal from an order refusing to grant the petition of the surety to be discharged from his surety bond and does not in any way raise
the question. On the merits following the decisions in Imbuchunni Nayar v. Lalji Ram Dos Salt ILR 24 M. 560 Krishnaiyer v. Krishnasamy Aiyar
ILR 26 M. 366 respectively, we hold that the surety was discharged inasmuch as the judgment-debtor did apply within one month to be declared
an insolvent.
We, therefore, reverse the orders of the courts below and dismiss the plaintiff's application to enforce the surety bond against the surety with
costs throughout.
As an appeal lies, the revision petition is dismissed but without costs.