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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 425 of 1963. Appeal by special leave from the Judgement and order dated April 14, 1960 of the Punjab High Court (Circuit Bench at Delhi) in L.P.A. No. 17-D of 1960.

Gopal Singh and Amar Singh, for appellant No. 1. J. M. Lal, E. C. Agarwala and P. C. Agarwala, for appellant No. 3.

Bishan Narain, K. Rajendra Chaudhury and K. R. Chaudhury, for respondent No. 1.

Mohan Behari Lal, for respondent No. 3.

S. K. Mehta and K. L. Mehta, for respondent No. 4. The Judgment of the Court was delivered by Shah, J. Messrs Jagdish Pershad Kishan Chand-hereainafter called 'the first respondent commenced suit No. 265 of 1952 in the Court of the Senior Subordinate Judge, Delhi, against the second respondent for a decree for possession of goods hypothecated to them by Messrs. Mudgal Motors Ltd.,-second respondent in this 'appeal. The 'first respondent filed another suit No. 43 of 1952 for a decree for Rs. 42,914/10/- being the amount due at the foot of the hypothecation account, and for sale of the goods in satisfaction' of the amount due. The two suits were consolidated for trial. In suit No. 43 of 1952 the first respondent applied for appointment of a receiver and the Court directed the second respondent to furnish security in the sum of Rs. 50,000/-. Pursuant to this order five persons stood sureties for satisfaction of the decree. It was recited in the surety bond dated April 21, 1953, that the five sureties mortgaged the properties specified in the Schedule annexed thereto and jointly and severally agreed that if any decree was passed against the second respondent they shall comply with the same and in default the amount payable under the decree but not exceeding Rs.50,0001- shall be realized from the properties mortgaged. This surety bond was not registered. Out of the five sureties, Sri Chand, Basant Lal and Debi Ram are appellants in this appeal.

On January 14, 1955, the second respondent was ordered to be wound up in a petition presented by the first respondent to the District Court, Delhi. Suit No. 265 of 1952 was thereafter withdrawn and in suit No. 43 of 1952 a decree was passed against the second respondent for RS. 42,914/10/- with costs and future interest at percent per cent per annum. The first respondent then applied to execute the decree against the sureties. The sureties objected to the execution of the decree against them on the grounds, inter alia, that the surety bond not being registered as required by law, the application for execution just fail, and that since the first respondent had committed acts by which the remedy of the sureties against the second respondent had been impaired the sureties stood discharged. The Commercial Subordinate Judge, First Class, Delhi, rejected the objections raised by the sureties, and the order of the Subordinate Judge was confirmed by Grover, J,, in appeal to the High Court of Judicature, Punjab. Appeals against the order of Grover, J., under the letters patient of the High Court were dismissed in limine. With special leave granted on August 12, 1962, Sri Chand, Basant Lal and Debi Ram-three of the sureties--have appealed to this Court.

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The two principal pleas raised before Grover, J., were that the surety bond was not enforceable because it wss not registered and that the decree-holders had committed an act by which the remedy of the sureties against the judgment- debtor had been impaired and therefore the sureties stood discharged. The learned Judge negatived both the pleas. The decision of the Court obviously proceeded on grounds which were common to all the sureties.

Basant Lal died after the order of the High Court under appeal. He had preferred an appeal, but since the legal representatives to his estate have not been brought on record, his appeal has abated. The order of the High Court holding that the sureties are liable to satisfy the claim notwithstanding the objections raised by. Basant Lal has become final; In the appeal filed by the appellants 1 & 3 if this Court holds that the High Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some act which has discharged the sureties from liability under the bond, there would unquestionably be two inconsistent orders-one passed by the High Court holding that the surety bond was enforceable, and the other, the view of this Court that it is not enforceable. This Court has on more occasions than one considered whether in circumstances similar to these, an appeal should stand abated in its entirety. In the State of Punjab v. Nathu Ram (1) this Court explained the tests applicable in considering whether an appeal abates in its entirety when it has abated qua one of the respondents. The headnote of the case reads "If the Court can deal with the matter in controversy so far as regards the rights and interest of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal aid decide it :

Liability of the sureties is under the law joint and several. if a creditor seeks to enforce the surety bond against some only of the joint sureties, the other sureties will not on that account be discharged : nor will release by the creditor of one of them discharge the other : vide ss. 137 & 138 of the Contract Act. But the fact that the surety bond is ,enforceable against each surety severally, and that it is open to the creditor to release one or more of the joint sureties, does not alter the true character of an adjudication of the Court when proceedings are commenced to enforce the covenants of the bond against all the sureties. We are not concerned in this appeal with the privilege which a creditor may exercise, but with the effect of an adjudication which the Court has made in a proceeding to enforce the covenant of the bond. The mere fact that the obligation arising under a covenant may be enforced severally against all the covenantors does not make, the liability of each covenantor distinct. It is true that in enforcement of the claim of the decree-holder the properties belonging to the sureties individually may be sold separately. But that is because the properties are separately owned and not because the liability arises under distinct transactions.