ASHARFIBAI Vs. PARSHADILAL

JUDGEMENT

(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:

(3.) I think that the learned trial Court was very much influenced in its view by the legal position it discussed. The plaintiff has examined her self in this case and she has stated that her husband was ill and that in the circumstances, she handed over the money to Ramlal and that it was in her presence that the bond was executed. The trial Court has refused to believe her, simply on the ground that if she paid the money, then she ought to have got the bond executed in her favour. 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.