Shahid Gul and another Vs Ziaullah Wazir and another

JUDGMENT SHEET

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(Judicial Department)

RFA No. 263-A/2023

Shahid Gul and Israr Khan.

Appellant(s)

V e r s u s.

Zia ulllah Wazir and another.

Respondent(s)

Present: Mr. Muhammad Arif Khan Jadoon, Advocate for appellants.

Mr. Fazaullah Khan, Advocate for respondent No. 1.

Date of hearing: 18.06.2026.

JUDGMENT

SYED MUDASSER AMEER, J. Through this appeal, the appellants have called in question the order dated 02.11.2023 passed by the learned Executing Court/Additional District Judge-VII, Abbottabad, whereby the application filed by the appellants seeking withdrawal of the surety bonds furnished by them in execution proceedings was dismissed.

2.Brief facts of the case are that the respondent/plaintiff instituted a suit under Order XXXVII, C.P.C. against one Umair Gul for recovery of

Rs.14,00,000/- along with profit. The said suit was contested by the defendant but ultimately decreed in favour of the respondent/plaintiff.

3.The respondent/decree-holder thereafter initiated execution proceedings before the learned Additional District Judge-VII, Abbottabad. During the course of execution proceedings, the present appellants furnished surety bonds before the learned Executing Court, undertaking that in case the judgment-debtor failed to appear before the Court, they would produce him and that if he failed to satisfy the decretal amount, they themselves would be responsible for payment thereof.

4.Subsequently, the appellants moved an application seeking withdrawal of the surety bonds. The learned Executing Court, vide impugned order dated 02.11.2023, dismissed the said application. Hence, the instant appeal.

5.Arguments heard. Record perused.

6.It is an admitted position that the judgment and decree passed in favour of the respondent/decree-holder have attained finality. The controversy regarding the rights and liabilities of the parties already stands conclusively determined. The execution proceedings are now confined to enforcement of the decree and securing to the decree-holder the fruits thereof.

7.The record further reveals that the appellants and the judgment-debtor are real brothers. During execution proceedings, both appellants voluntarily appeared before the learned Executing Court and furnished a written undertaking in the following terms:

اگر مديون عدالت ميں پيش نہ ہو تو ہم ضامنان زمدران پابند ہونگے۔ لهزا ضمانت نامہ سند تحرير ہے۔ نيز اگر مدہون زر ژگری عدالت ميں جمع نہ کروائے تو ايسی صورت ميں من مقران عدالت ميں زر ژگری جمع کروانے کے پابند ہونگے۔

8.The language employed in the surety bond leaves no room for ambiguity. The appellants not only undertook to secure the presence of the judgment-debtor but also expressly bound themselves to satisfy the decretal amount in the event of default by him.

9.Such an undertaking is not a mere formality. It is a solemn assurance furnished before a Court of law.

Once accepted and acted upon by the Court, it creates legal consequences which cannot be ignored merely because the surety subsequently changes his mind.

10.Learned counsel for the appellants argued that the appellants are entitled to revoke or withdraw the surety bonds and, in support of such contention, placed reliance upon section 130 of the Contract Act, 1872.

11.The argument is misconceived.

12.Chapter VIII of the Contract Act, 1872 deals with contracts of guarantee. Section 128 expressly provides that the liability of the surety is co-extensive with that of the principal debtor unless otherwise provided by the contract. The legal consequence is that the surety and the principal debtor become jointly and severally liable for the obligation undertaken. The creditor is not bound to first exhaust his remedies against the principal debtor before proceeding against the surety.

This principle has consistently been affirmed by the superior Courts. Reference may be made to Mst. Zubaida Begum v. Mst. Marium Bibi (2006 SCMR 619), Muhammad Ashraf v. Habib Bank Limited (2005 SCMR 72), Muhammad Shahzad v. Muhammad Arshad (2023 CLC 2169) and Muhammad Riaz v. Muhammad Aslam

(2025 CLC 1820).

13.Thus, once the appellants voluntarily undertook before the learned Executing Court that they would satisfy the decretal amount in the event of default by the judgment-debtor, their liability became co-extensive with that of the judgment-debtor himself. The decree-holder was not legally required to first exhaust every possible remedy against the judgment-debtor before seeking enforcement of the surety bond.

14.The Contract Act draws a clear distinction between an ordinary guarantee and a continuing guarantee. Section 129 defines a continuing guarantee as

one extending to a series of transactions. Section 130 permits revocation only of such continuing guarantee in respect of future transactions.

15.The undertaking furnished by the appellants is not a continuing guarantee within the contemplation of Sections 129 and 130 of the Contract Act. It does not relate to a series of future transactions. It was furnished in relation to a specific and existing liability arising from a decree already passed by a competent Court. The liability was fixed, quantified and judicially determined.

Consequently, section 130 of the Contract Act has no application to the facts of the present case.

16.Equally significant is the fact that the Contract Act itself specifies the circumstances in which a surety may stand discharged. Sections 133 to 139 deal with discharge by variance of contract, release of principal debtor, composition, impairment of remedy and other recognized grounds. No provision confers upon a surety an unrestricted right to unilaterally withdraw from a guarantee after it has been accepted and acted upon.

17.The legislative scheme therefore leaves little room for doubt. A surety may be discharged in circumstances recognized by law or by contract, but not merely because he has changed his mind or subsequently finds the obligation inconvenient.

18.The position under the Code of Civil Procedure is equally significant. Section 145, C.P.C. expressly recognizes and enforces liabilities undertaken by sureties before Courts. The provision is founded upon the principle that a person who voluntarily undertakes responsibility before a Court becomes answerable in the same proceedings without compelling the successful litigant to institute fresh litigation.

19.Significantly, neither Section 145, C.P.C. nor any other provision of the Code confers a right upon a surety, who has undertaken responsibility for satisfaction of a decree, to unilaterally withdraw from such undertaking after it has been accepted by the Court.

20.It is true that Order XXXVIII Rule 3, C.P.C.

contains a provision regarding discharge of surety furnished for appearance. However, that provision pertains to an entirely different situation. The very existence of such an express provision demonstrates that whenever the legislature intended to permit discharge of a surety, it did so expressly. No analogous provision exists in respect of a surety who undertakes responsibility for payment of decretal amount. The omission is both deliberate and significant.

21.The Courts have consistently held that a surety who voluntarily furnishes an undertaking before a Court cannot subsequently wriggle out of the obligation

assumed by him. In Muhammad Shahzad v. Muhammad Arshad (2023 CLC 2169) and Muhammad Riaz v.

Muhammad Aslam (2025 CLC 1820), it was held that where a person voluntarily appears before the Court, furnishes surety and undertakes responsibility for satisfaction of a decree, he cannot subsequently resile from such undertaking after the Court and the decree- holder have acted upon it.

22.The rationale is obvious. If sureties are permitted to withdraw at will after securing the benefit for which the surety was furnished, the entire object of obtaining sureties in judicial proceedings would stand frustrated.

Such a course would undermine confidence in judicial undertakings and seriously prejudice decree-holders who act upon such assurances.

23.A surety who undertakes before a Court to satisfy a decree in the event of default by the judgment- debtor does not possess an independent statutory right to withdraw from that undertaking merely at his own election. Such liability continues unless discharged in accordance with law or the terms of the contract itself.

24.The authorities further establish that subsequent events do not ordinarily discharge a surety once liability has attached. Attempts by sureties to avoid liability on account of arrest, imprisonment or even death of the

judgment-debtor have repeatedly been rejected by the Courts.

25.In Muhammad Riaz v. Muhammad Aslam (2025 MLD 1156), it was specifically held that even the death of the principal obligor does not by itself discharge the surety unless the bond itself so provides. The broader principle emerging from the jurisprudence is that once liability has attached under a valid surety bond, it survives unless law or contract provides otherwise. No such provision has been pointed out in the present case.

26.Guidance may also be drawn from Muhammad Amin v. Judge Family Court, Sahiwal and others (2015 YLR 316) and Javed Iqbal v. Judge Family Court and others (2018 MLD 1296), wherein it was held that a surety is as much bound by his undertaking as the judgment-debtor himself and both remain collectively and severally liable for satisfaction of the decree. The surety cannot evade the obligation voluntarily assumed before the Court.

27.The sanctity of undertakings furnished before Courts cannot be diluted. Judicial proceedings rest upon confidence that assurances given to the Court will be honoured. A person who voluntarily assumes liability before a Court cannot ordinarily be permitted to retreat from such obligation once the Court and the opposite party have acted upon it.

28.It is also material that the decree in favour of the respondent/decree-holder has attained finality and the execution proceedings are meant only to enforce the same. The decree-holder cannot be deprived of the fruits of the decree by technical pleas raised by persons who themselves voluntarily stepped into the execution proceedings and assumed responsibility for the judgment-debtor.

29.The appellants, being real brothers of the judgment-debtor, were fully conscious of the nature of the proceedings and the liability which they were undertaking. They cannot now be heard to say that they should be absolved from an obligation solemnly undertaken before a Court of law.

30.The conduct of the judgment-debtor is also relevant. The record shows that he had earlier moved an application seeking permission to pay the decretal amount in instalments, which was dismissed up to this Court. The present attempt by the sureties to withdraw their bonds appears to be yet another effort to delay execution and frustrate the lawful claim of the decree- holder.

31.The learned Executing Court rightly observed that the appellants cannot be permitted to escape from the liability arising out of their own surety bonds. The impugned order does not suffer from any illegality,

misreading or non-reading of the record. Rather, the learned Executing Court has exercised jurisdiction in accordance with law and has protected the sanctity of the undertaking furnished before it.

32.The conclusion is inescapable. The appellants voluntarily furnished surety bonds, expressly undertook to satisfy the decretal amount in the event of default by the judgment-debtor, and bound themselves before a Court of law. Neither the Contract Act, 1872 nor the Code of Civil Procedure, 1908 confers upon them a right to unilaterally withdraw from such undertaking after it has been accepted and acted upon. A judicial surety furnished for satisfaction of a decree stands on a fundamentally different footing from a continuing commercial guarantee and cannot be revoked unilaterally after acceptance by the Court.

33.Consequently, this appeal, being devoid of merit, is dismissed. The order dated 02.11.2023 passed by the learned Executing Court is maintained.

Announced.

(Tahir CS)

JUDGE