( 1 ) THIS appeal is filed by original defendant No. 2 in regular civil suit No. 1552 of 1971 filed in the court of the 3rd Joint Civil Judge (Junior Division) Surat by respondent No. 1 Bank for recovering an amount of Rs. 433. 7-48 paise against appellant defendant No. 2 as well as respondent No. 2 original defendant No. 1.

( 2 ) THE trial court decreed the suit against respondent No. 2 but dismissed it against the appellant defendant No. 2. The appellate court allowed the appeal of respondent No. 1 plaintiff bank and also passed a decree against the present appellant original defendant No 2. That has brought dissatisfied defendant No. 2 to this court by way of the present second appeal.

( 3 ) NOW a look at a few relevant facts. Respondent No. 1 is a banking company registered under the Banking Companies Act 1913 and it is transferred under the Acquisition and Transfer of Undertakings Act 1969 and it is functioning in the name of Central Bank of India. Respondent No. 1 bank filed the aforesaid suit on a promissory note against respondent No. 2 original defendant No. 1 as the principal debtor and the present appellant-defendant No. 2 as a surety. It is the case of the plaintiff bank that defendant No. 1 had borrowed an amount of Rs. 5 0 on 19/09/1968 from the plaintiff bank by opening an account and the present appellant defendant No. 2 had stood surety and guarantee for defendant No. 1 and both the defendants had executed a promissory note for Rs. 5 0 on 19/09/1968. Defendant No. 1 paid some amount and after giving credit for the said amount an amount of Rs. 4 337 was found outstanding from defendant No. 1 in 1971. As the said defendant had not paid the said amount the plaintiff bank served the said defendant with a notice on 27/09/1971. Defendant No. 1 acknowledged the debt by his letter dated 10/10/1971. As the amount was ultimately not paid up by the defendants the plaintiff bank filed the aforesaid suit for recovery of Rs. 4 337 from both the defendants with running interest at 12% per annum.

( 4 ) ORIGINAL defendant No. 1 the principal debtor though duly served did not appear and the suit was heard ex-parte against him. So far as the present appellant is concerned he appeared and filed his written statement at Ex. 10 and denied execution of the promissory note and also denied acknowledgement of the debt and contended that defendant No. 2 had not borrowed any amount from the bank and it was further contended that the averments made by defendant No. 1 in reply to the suit notice were not binding on defendant No. 2 and that the plaintiff had no right to file the present suit against him and it was barred by limitation.

( 5 ) THE trial court raised issues at Ex. 13 and came to the conclusion after recording evidence that the execution of the promissory note on 19/09/1968 by defendant No. 1 was duly proved and that defendant No. 2 has stood surety for the amount of the promissory note borrowed by defendant No. 2. On the question of limitation the court took the view that the suit was within limitation only against defendant No. 1 and held that acknowledgement made by defendant No. 1 was not binding on defendant No. 2 nor was the period of limitation against defendant No. 2 extended by various part payments of the loan amount made by defendant No. 1. It was therefore held that the suit against defendant No. 2 was barred by limitation. The result was that the suit of the bank against defendant No. 2 was dismissed while it was decreed against defendant No. 1.

( 6 ) THE trial courts decree resulted into an appeal at the instance of the plaintiff bank before the District court Surat. The bank contended in its appeal before the District court that the trial court ought to have passed a decree against surety defendant No. 2 also. So far as original defendant No. 1 was concerned he did not challenge the decree passed against him by the trial court and it became final against him.

( 7 ) THE appellate court took the v