Full Judgment
1. In this case a preliminary objection is taken that no appeal lies.
2. The appeal is from an order directing that the security given by a surety under Section 336, C.P.C. should be realized in execution against the surety.
3. Section 336 extends the provisions of Section 253 of the Code of Civil Procedure 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 under Section 253 of the Code that the order is appealable in the same manner as orders passed under Section 244 of the Code in execution of decrees. These decisions must in principle be equally applicable to orders against sureties under Section 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 I.L.R. 24 M. 637--and Banna Mal v. Jamna Das I.L.R. 15 A 183 do not apply. The former applies to the case of a surety under Section 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 I.L.R. 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 I.L.R. 24 M. 560 Krishnaiyer v. Krishnasamy Aiyar I.L.R. 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.
4. 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.
5. As an appeal lies, the revision petition is dismissed but without costs.