AZIZ AHMAD Vs. SHER ALI

JUDGEMENT

(1.) The question which has been referred to this Bench is

(2.) This Court has consistently taken the view that a surety is discharged when a creditor allows his remedy against the principal debtor to become baried under the law of limitation, but a different view has been taken by the other High Courts in India and by the former Chief Court of Oudh (see -- 'Hajarimal v. Krishnarav', 5 Bom 647 (A); --'Bireshwar Chatterji v. Saidpur Commercial Bank Ltd., 41 Cal WN 1361 (B); -- 'Subramania Aiyar v. Gopala Aiyar', 33 Mad 308 (C); -- 'Nur Din v. Allah Ditta', AIR 1932 Lah 419 (D); -- 'Jagdambika Pratap Narain Singh v. Tir Singh Bahadur Singh' 1941 Oudh WN 473 (E)) and in -- 'Mahant Singh v. U Ba Yi', AIR 1939 P. C. 110 (F) the Privy Council expressed its preference for the reasoning of the majority.

(3.) In England a failure to sue the principal debtor until recovery is barred by the Statute of Limitation does not operate as a discharge of the surety. In -- 'Carter v. White', (1885) 25 Ch D 666 (G) Lindlay, L. J., said,