KESHAVLAL HARILAL SETALVAD Vs. PRATAPSING MOHOLALBHAI SHETH

JUDGEMENT

(1.) The plaintiffs sued to recover Rs. 1,14,000 and odd on the strength of a mortgage-bond dated October 17, 1921, executed by defendant No. 1 and of a surety bond dated October 24, 1921, executed by defendants Nos. 2 and 3. A decree was granted against defendant No. 1 as prayed and as regards the sureties the claim was allowed except for a sum of Rs. 5,875 plus interest thereon. The original defendant No. 1 has not appealed, the appellants being the sureties, defendants Nos. 2 and 8,

(2.) The contention of the sureties in substance was that they were not liable because there had been a substantial variation in the original contract between the plaintiff's and defendant No. 1 without their consent, It was also pleaded that the sureties were discharged because time was given to the principal debtor without their consent.

(3.) The learned Subordinate Judge held that the document evidencing the so- called new contract between the plaintiffs and defendant No. 1, Exhibit 93, could not be recognised or admitted in evidence, and that therefore there was no variation discharging the sureties. He, however, held that the sum of Rs. 5,875 paid to defendant No. 1 was in variation of the original contract and held the sureties discharged to that extent. He did not consider that there was any contract to give time and that the delay in filing a suit was merely due to forbearance which did not operate to discharge the sureties. He accordingly gave a decree as stated above.