JOHN KURUVILLA Vs. PARAMESWARAN PILLAI

JUDGEMENT

(1.) Decree-holders in O. S. 84/74 are the revision petitioners. The suit was for recovery of money, and a bus belonging to the defendant was attached before judgment. It was released on the defendant and the respondent-surety executing Ext. A1 bond in favour of the court on 30-10-1974, whereunder some immovable property of the respondent was also offered as security for the amount that might be found due to the plaintiff. Subsequently, on 11-8-1975, the plaintiffs and the defendant compromised the matter and a compromise decree was passed, permitting the defendant to pay up the amount in 14 monthly instalments, and allowing the plaintiffs to recover the amount in a lump if three instalments were consecutively defaulted. The respondent-surety was not a party to this compromise.

(2.) The decree-holders took out execution in E. P. No. 172/77. The bus was brought to court and sold in auction. The surety then filed E. A. 353/77 for being absolved of his liability. The executing court held, following Kurian v. Alleppey C. C. M. S. Society (1974 Ker LT 541), that the surety stood discharged by reason of the compromise (effected without his consent) granting time for payment. And what is mainly urged on behalf of the revision petitioners is that the said decision cannot apply to the facts of the present case where Ext Al bond contained the following provision. (Matter in Malayalam omitted-Ed)

(3.) Sections 135 and 137 of the Contract Act are relevant, and they read:- "135. A contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to, or not to sue, the principal debtor, discharges the surety, unless the surety assents to such contract."