KARIPARAMBIL YUSUF MOIDU Vs. SAMBANTHRI HAJI ABDUL KHADER SAHIB AND BROSBY MANAGING PARTNER HAJI MUHAMMAD MEERA SAHIB

JUDGEMENT

(1.) This is one of the too frequent cases in which a surety, when the time comes for fulfilling his obligation, displays the greatest reluctance to do so. The learned District Judge is undoubtedly right in pointing out that this is not one of the cases to which Section 135 of the Contract Act applies. There is here no question of surety being damnified by reason of a contract between the creditor and the principal debtor. The learned Subordinate Judge was wrong in supposing the decision in Annadana Jadaya Goundar V/s. Konammal (1932) 64 M.L.J. 386 : I.L.R. 56 Mad. 625 to be applicable; Mr. Justice Venkatasubba Rao (as he then was) points out that before Section 135 of the Contract Act can be applied there must be a contract.

(2.) The surety's obligation under his bond in this case was not merely to produce the debtor and to pay up if the debtor failed to do so; he bound himself to pay the debt at once, if the petition to set aside the ex parte decree should be unsuccessful. The granting by the Court of time to the judgment-debtor does not affect the surety's liability.

(3.) The appeal is dismissed with costs.