The liability of a surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract.

1. In this case the respondents first party had instituted a money suit against the respondents second party, claiming a sum of Rs. 3287/- and odd due on a chitha dated the 25th January, 1952. In that suit the respondents first party attached certain moveables of the defendants before judgment under Order 38, Rule 6, Code of Civil Procedure, but the property was released on the execution of a surety bond by the appellant in favour of the court. The suit was eventually decreed ex parte on the 15th November, 1954, for a total sum of RS. 4326/-and odd, and thereafter the decree was put into execution by the respondents first party as against the respondents second party and also as against the appellant. In the course of execution certain properties of the appellant were attached and an objection was raised on behalf of the appellant that the execution could not be proceeded against him until the respondents 1st party had exhausted all his remedies against the judgment-debtors and failed to recover the decretal amount. This objection was overruled by the lower appellate court and it was held that the decree-holders were entitled to proceed in execution against the appellant under the terms of the security bond. The relevant portion of the security bond executed by the appellant is as follows:

Banabir manmokir ka khas rajai wo rohat bahalat sehat wo jat wo sabat akil apne bela jaba wo dabab kisi dusro ke jamanatnama banisbat moblik 3600.00 rupaiya bahak wo banam adalatnama tahrir wo tamil karke ekrar karta hu ke bad Sadir degree majkur jar degree wo kharcha adalat Mudallah mokadma haja se adai nahi ho sake to us halat me manmokir jamanat dar jaramanat majkur apne jat wo digar jaidat nami wo benami wo mankula wo gairmankula se karegai wo Lina ujur dena kare eshme manmokir kha worisah manmokir ko koi ujur ya etraj nashi hai wo na hoga."

2. On behalf of the appellant it was submitted by learned counsel that according to the terms of the security bond the decree-holders were not entitled to proceed against the properties of the appellant unless they had exhausted all the remedies against the judgment-debtors and failed to realise the decretal amount. We do not think there is any substance in this argument. Under Section 126 of the Indian Contract Act, a contract of guarantee "is a contract to perform the promise, or discharge the liability, of a third person in case of his default" and under Sec.128 of the Contract Act "the liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract".

The wording of the contract of guarantee in the present case, as reproduced above, clearly indicates that there is no provision, express or implied, made between the parties to the effect that the liability of the surety will not be co-extensive with that of the principal debtor. It is not possible to construe the contract in this case as imposing any condition precedent upon the decree-holder to exhaust all his remedies against the principal debtors before proceeding against the surety for realising the decretal amount.

In our opinion the legal position in the present case is that the liability of the surety arose immediately on the failure of the principal debtors to perform their obligation and there is no condition imposed upon the decree-holders that they should proceed first and exhaust the remedies against the principal debtors before executing the decree against the surety. In our Opinion there is no contract in the present case between the parties limiting the liability of the surety, and the case of the appellant falls within the main portion of Section 128 of the Contract Act, because he has failed to establish any contract to the contrary limiting his liability. The view we have expressed is borne out by a decision of the Lahore High Court in Kuckreja Ltd. V/s. said Alam, AIR 1941 Lah 16, where it was held, in similar circumstances, that there was an ordinary contract of g