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The facts leading to the appeal are these. The appellant stood surety for a number of contractors who had taken contracts in 1947 for felling timber trees and removing timber in various forests in the erstwhile State of Baria. The contracts were taken as a result of auctions which took place under the 'Conditions of Auction Sale of Forests in the Baria State in the Samvat year 2002' corresponding to 1945-46 A.D., though in the plaint these conditions were referred to as Forest Auction Rules. On April 7, 1948, the appellant presented an application to the Baria State stating therein that certain brokers owed money to the various contractors mentioned in the application and praying that they be restrained to pay the amount due to the contractors until further orders and that those brokers and contractors be also restrained from directly removing the contractors' jungle goods stored in the godowns at Piplod, Baria and Limkheda without the permission of the State Government. It was further mentioned in the application that if those contractors would arrive at an arrangement with him and carry out the vahivat, be would do the needful in that behalf. On this application, it appears, the State Government issued notices to the contractors stating therein that the surety, i.e., the appellant, had moved, under cl. 8 of the Conditions of the Auction Sale of jungle goods for attachment of their goods that be lying in the godowns at Baria, Piplod and Limkheda in the State and the debts or other movable or immovable property belonging to them and for delivering the same to him and directed the contractors not to sell, mortgage, gift away or otherwise dispose of whatever movable or immovable property they had in the State without the permission of the State.

Subsequently, the State of Baria merged with the State of Bombay on June 10, 1948. Thereafter, the contractors were allowed by the Government to remove the materials on certain conditions.

The appellant presented a writ petition under Art. 226 of the Constitution to the High Court of Bombay. That petition is not printed in the appeal record. It was Civil Application No. 261 of 1952. It, along with two other applications, C.As. Nos. 260 and 376 of 1952, was disposed of by a common judgment in C.A. 260 of 1952 which is Exhibit P. 194. The parties agree that what was alleged and what was prayed for by the appellant in his petition could be gathered from the order Exhibit P. 194. The reply filed by the parties in that petition is Exhibit P. 196 and gives the case of the opposite party with respect to the allegations of the appellant in his petition. It however appears from the order of the High Court on that writ petition that the reliefs claimed were a direction to the respondents i.e., the State of Bombay and the Mamlatdar of Baria Taluka to raise the attachment levied' on Municipal Nos. 728 and 642 of Deogad Baria, the issue of a writ of mandamus or directions under Art. 226 of the Constitution prohibiting them from selling those Municipal numbers and: from proceeding with the auction sale of properties on February

5.Condition No. 8 of the conditions for auction sales of forests was "So long as the contractor has not paid the deposit or the confirmed sale price in full into the Treasury or to the Surety, the Surety shall, at any time present an application to the Treasury Officer for the recovery of an amount required to discharge his liability in connection with the confirmed sale price or of the amount paid by him without filing a suit for the same in a civil Court. In that case the property, effects and debts of the contractor that may be within the territory of the State shall, as in the case of land revenue, be attached and auctioned at the cost and risk of the contractor and out of the sale proceeds realised at the auction, the amount due to the surety or an amount equivalent to the amount required to discharge his liability shall be paid to the Surety."

It is urged for the appellant that in the writ petition the contention about the appellant's liability as a surety having come to an end was based on the terms of the contract, which was based on the conditions of auction sales, between the appellant and the State of Baria while in the present suit the contention with respect to the cession of his liability as a surety was based on the auction rules. The distinction sought to be made has no substance. It is denied in the reply affidavit filed on behalf of the respondent in the writ petition that there were any Baria State Forest Auction Rules. We have not been referred to any rules, In fact, when we asked for the rules, we were provided by learned counsel for the appellant with a booklet by the name 'Conditions for the Auction Sale of Forests'. Further, the order of the High Court on the 'writ petition mentions in the early part of the order :