1. The plaintiff sued the two defendants on a promissory note. The second defendant pleaded that he was a surety. There was some difficulty in serving the first defendant, and we gather from the record that his name was struck out. As a year had not elapsed, presumably this was done, if not at the request, at least with the consent of the plaintiff. The defendant No. 2 then contended that as the act of the plaintiff in having the defendant No. 1's name thus struck off operated as a complete discharge of the principal debtor, he, the surety, was likewise discharged and the suit must be dismissed.
2. The learned Judge who tried this suit as a Small Cause Court suit was of opinion that this contention was sound and dismissed the plaintiff's suit.
3. We think that the striking off of the defendant No. 1's name was a procedure under Order IX, Rule 5, rather than Order XXIII, Rule 1. And all the authorities in all the Courts of India who have had this question under consideration, although they differed upon another point, are in agreement that the mere omission of the plaintiff to pursue his suit against one of the defendants with the result that that defendant's name. is struck off and the suit dismissed against him under Order IX., Rule 5, does not discharge the surety, provided the suit be still in time against the principal. That being so, and confining our decision to that ground alone, we think that the order of the learned Judge below dismissing the suit was wrong.
4. Even were that not so, it would still be a question whether, in view of the form of the suit, the Judge ought to have taken it for granted, as he appears to have done, that the plaintiff was suing the second defendant merely as a surety. If, in fact, he was suing him as a principal, none of these considerations upon which the dismissal of the suit has been based would apply at all.
5. We must, therefore, reverse the decree of the learned Judge below and remand the case to him for trial upon the merits. 6. Costs will be costs in the cause.
Costs will be costs in the cause.