TARACHAND LAKHMICHAND CHUHAN Vs. GOPAL LACHIRAMKUMAR

JUDGEMENT

(1.) THIS is a petition to revise a decision of the Court of Small Causes of Ratlam dismissing the plaintiff applicant's suit for the recovery or Rs. 50/- together with interest thereon from the non-applicant Gopal.

(2.) THE facts of the case are that on 14-3-1950 Gopal borrowed Rs. 100/- from one nandibai. The plaintiff Tarachand stood surety on that very date for the repayment of the amount by Gopal. The defendant Gopal made a repayment of Rs, 50/- to nandibai. It is not known when this repayment was made. Thereafter Gopal did not pay anything to Nandibai, According to the plaintiff on 28-8-1956 he himself paid Rs. 50/- to Nandibai which Gopal had to pay to her and that, therefore, he was entitled to recover this amount from Gopal, the learned Judge of the lower Court dismissed the plaintiffs suit on the ground that the payment made by the plaintiff Tarachand to Nandibai on 28-8-1956 was not a rightful payment inasmuch as on that date Nandibai's claim against both the principal debtor Gopal and the surety Tarachand was barred by time. The plaintiff has now. filed this revision petition.

(3.) IT is common ground that on 28-8-1956 when the plaintiff was said to have made a payment of Rs. 50/- to Nandibai, the claim of Nandibai against both Gopal and Tarachand was barred by time. Mr. Vohra, learned counsel for the applicant, however, argued that the payment made by the plaintiff to Nandibai could not be said to be one not rightfully made under the contract of suretyship merely because nandibai's remedy against the principal debtor and the plaintiff-surety had become barred by limitation. Learned counsel said that though the remedy by action was barred by limitation, there was no extinction of the debt and that, therefore, the surety was justified in making the payment that he did to Nandibai. I am unable to accede to the contention advanced by the learned counsel for the petitioner. The matter is governed entirely by Section 145 of the Contract Act which says: