A.H. Khan, J.
1. The plaintiff Musammat Asharfi Bai brought a suit against Ramlal, the principal debtor (defendant No. 1) and against his surety Parshadi-lal (defendant No. 2) for the recovery of the money due on a bond executed in favour of her husband. The suit was instituted after the death of the husband. During the proceedings, it was discovered that before the filing of the suit, defendant No. 1 Ramlal (principal debtor) had died, and as such his name was struck off from the array of the defendants, and, the case proceeded only against Par-shadilal, the surety.
After recording evidence of the parties, the trial Court (Small Cause Judge, Lashkar) dismissed the suit on the two grounds: First, that because the plaintiff had neglected to sue the principal debtor, the liability of the surety came to an end. In holding this, the trial Court relied on Section 134 of the Contract Act. The Court also held that the debt is not proved. Against this decision, the plaintiff has filed this revision.
2. I am surprised at the view that the learned trial Court has taken namely, that if a creditor neglects to sue the principal then the liability of the surety comes to an end. How has he been able to deduce this from Section 134 of the Contract Act is beyond comprehension. Section 134 reads as follows:
'The surety is discharged by any contract between the creditor and the principal debtor, by which the principal debtor is released, or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor.'
According to the above section, a surety is discharged by any contract by which the principal debtor is released. Here the surety has not proved the existence of any contract by which the principal debtor was released. Section 134 has no application whatsoever to this case. On the contrary, according to Section 128 of the Contract Act, the liability of a surety is co-exterisive with that of the principal debtor and according to Sankana Kalana v. Virupa-kshapa Ganeshappa, ILR 7 Bom 146 (A), the surety's liability to pay the debt is not removed by creditor's omission to sue the principal debtor.
In the commentary of the Indian Contract Act by Sir Fedrick Pollock and Mulla (1919 Edition) on page 573 under Section 128 of the Act, it is said thatthe creditor is not bound to exhaust his remedy against the principal before suing the surety and a suit may be maintained against the surety, though the principal has next been sued. In this view of the matter, the trial Court was wrong in dismissing the suit on the ground that because the principal had not been sued, the liability of the surety came to an end.
3. I think that the learned trial Court wasvery much influenced in its view by the legal position it discussed. The plaintiff has examined herself in this case and she has stated that her husband was ill and that in the circumstances, shehanded over the money to Ramlal and that it wasin her presence that the bond was executed. Thetrial Court has refused to believe her, simply onthe ground that if she paid the money, then sheought to have got the bond executed in herfavour.
But in fact it was her husband who was doing the business and because the husband was ill, she brought the money and paid it to Ramlal. In the circumstances I do not see why it was necessary for the wife to have the document executed in her favour when husband was still alive and doing the business. The defendant has denied putting down his signatures on the bond.
He has admitted his signatures on the summons that were sent to him. On a perusal of the signatures on the bond and on the summons that were served on him, I find, that both signatures are alike, I am of the opinion that the bond was executed by Ramlal and that Parshadilal was his surety.
4. For reasons stated above, I would allow the revision and decree the plaintiff's suit for Rs. 120/- as principal amount with interest at 6 per cent., per annum from the date of the institution of the suit till the realisation of the amount. The plaintiff shall also get her costs throughout.