- The Lahore High Court held that a decree can be executed against a surety as well as the principal debtor.
- The petitioner, Gohar Rehman, had submitted a surety bond when his son was sent to civil prison.
- The court said a guarantor's liability is co-extensive with the principal debtor's unless the contract says otherwise.
- The petition against the trial court's possession warrant was dismissed.
The Lahore High Court has ruled that a court decree can be enforced against a surety, not only against the principal debtor. It dismissed a petition from a man who tried to avoid losing his house after standing guarantee for his son.
The court stated that a guarantor cannot back away from, or refuse, the liabilities he took on by executing the relevant document.
How the dispute began
According to the details of the case, Sadia Bibi was given a house by her husband, Raja Rizwan, at the time of their marriage. An entry to that effect was also recorded in the Nikahnama.
A trial court later issued a warrant of possession for the house of the petitioner, Gohar Rehman, in his capacity as guarantor. He challenged that order before the High Court.
His argument was that he was neither a witness to nor a signatory of the Nikahnama, so his property could not be attached.
Why the argument failed
The court accepted the general principle that a person who is neither a signatory nor a party to a suit, but whose property is made answerable for a decree, cannot ordinarily be burdened with its consequences. It added, however, that the position in this case was somewhat different.
The petitioner is the father of Raja Rizwan and had also appeared as a defence witness during the trial. When the executing court sent his son to civil prison for failing to comply with the terms of the decree, he came forward to help him and submitted a surety bond.
In that bond, the court noted, he undertook to satisfy the decree if his son failed to do so. The court said he was aware of all the proceedings and had stood closely alongside his son, so he could not now escape his liability.
The legal provisions cited
The court referred to section 128 of the Contract Act, 1872, under which a guarantor's liability is co-extensive with that of the principal debtor, unless the contract provides otherwise.
It also relied on section 145 of the Code of Civil Procedure, which makes a surety liable to perform what he has undertaken, in the manner set out in that provision.
Limits of constitutional jurisdiction
The petition was filed under Article 199 of the Constitution. The court observed that this jurisdiction depends on the circumstances: either the judgment under challenge results from a gross misreading or non-reading of evidence, or there is a patent illegality on the face of the record.
It found no ground to take exception to the conclusions of the courts below. The petitioner, it said, had failed to point to any perversity or material irregularity that would justify using its constitutional jurisdiction, and the petition was dismissed.
Questions and answers
Can a decree be executed against a surety in Pakistan?
Yes. The Lahore High Court held that a decree can also be executed against a surety, and that a guarantor cannot refuse the liabilities he incurred by executing the document.
How does the law treat a guarantor's liability?
Under section 128 of the Contract Act, 1872, the guarantor's liability is co-extensive with that of the principal debtor, unless the contract provides otherwise.
Why was Gohar Rehman's petition dismissed?
The court noted that he is the father of Raja Rizwan, appeared as a defence witness and submitted a surety bond when his son was sent to civil prison. It found no perversity or material irregularity in the lower courts' decisions.
Image: MariyamAftab / Wikimedia Commons, CC BY-SA 4.0
