1. - The only point involved in the present regular first appeal is as to whether the defendant No. 2 Giriraj Prasad Mittal, who is respondent herein, who stood guarantor of principal borrower defendant No. 1 Subedar Santokh Singh is jointly liable for dues payable by defendant No. 1 to plaintiff-Bank and trial Court committed an illegality while deciding issue No. 5 whereby it has been held that defendant No. 2 did not execute Ex. 9 deed of guarantee.

2. Briefly stated the facts of the case are that plaintiff-appellant filed a suit for recovery of a sum of Rs. 91,749.05/- against defendants No. 1 to 3 namely Subedar Santokh Singh, Giriraj Prasad Mittal and Sardar Manak Singh. The defendant No. 1 Santokh Singh was the principal borrower and defendants No. 2 and 3 stood sureties for him. The defendant No. 2 filed his written- statement, wherein it was stated that his signatures were got on some blank form by Bank Manager, and he was not aware as to whether he is guarantor or not. The trial Court framed issue No. 5 as to whether the defendants No. 2 and 3 executed the guarantee deeds, as alleged in paras No. 8, 9 and 10 of the plaint. The trial Court decided issue No. 5 in favour of the defendant No. 2 and, consequently, while decreeing the suit of plaintiff-appellant against defendants No. 1 and 3, dismissed the suit against defendant No. 2. Being aggrieved with the same, the Bank has preferred this regular first appeal against defendant No. 2 with a prayer that he was also jointly liable for payment of dues of loan amount and a decree may also be passed against him.

3. The learned counsel for the appellant contended that defendant No. 2 executed the deed of guarantee Ex. 9. There are averments in the plaint in para 8 about execution of guarantee deed by defendant No. 2. The defendant No. 2 admitted the execution of Ex. 9, but he only contended that his signatures were got on blank papers. He read the statement of DW-2 Giriraj Prasad himself, wherein he admitted the execution of Ex. 9. He also submitted that from the statement of PW-1 Om Prakash, it is clear that Ex. 9 was executed by defendant No. 2 in his presence and in these circumstances, the trial Court committed an illegality in not deciding the whole issue No. 5 in favour of plaintiff and in dismissing the plaintiff's suit against defendant No. 2.

4. The only submission of learned counsel for the respondent / defendant No. 2 is that as per Section 134 of the Indian Contract Act, 1872, the surety stands discharged by any contract between the creditor and the principal debtor, by which the principal debtor is released, or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor. His contention is that the decree was passed against principal borrower way back on 9th August, 1991 and since then the said amount has not been recovered by plaintiff-Bank either by filing the execution petition or otherwise, therefore, by act of bank, the liability of respondent stood discharged and the present appeal is liable to be dismissed only on this ground alone. However, he has not denied the execution of Ex. 9 by defendant No. 2 and no other submission has been advanced on his behalf.

5. I have considered the submissions of learned counsel for both the parties and examined the impugned judgment as well as the record of the trial Court.

6. The only dispute in the present case is about the finding on issue No. 5. The plaintiff filed a suit for recovery against principal borrower and two sureties stood for him. The trial Court decided issue No. 5 in favour of the defendant No. 2 and consequently dismissed the suit against him. The suit was decreed against principal borrower defendant No. 1 and another surety Sardar Manak Singh - defendant No. 3.

7. So far as pleadings of the parties in respect of issue No. 5 is concerned, para 8 of the plaint and written statement filed on behalf of defendant No. 2 are relevant, which are reproduced