This C.R.P. which came on for disposal before one of us in the first instance was referred to a Bench in view of the importance of the point raised and the absence of any decision of this Court on the question involved.

The facts of the case have been set out sufficiently in the order of reference and we feel it not necessary to repeat them. Bereft of unessentials, the question raised for our consideration is whether a surety for a debt for which a minor made himself liable could be proceeded against on his contract of guarantee. The District Munsif has held in the affirmative, and it is the correctness of this position that has been canvassed before us in this petition.

The minor was of course not liable and the suit has been dismissed as against him. As regards the surety who is the petitioner before us, section 128 of the Indian Contract Act enacts:

"128. The liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract."

That the section refers to the quantum of a surety’s obligation is beyond dispute. But the question to be considered by us is whether the obligation of a surety becomes a primary one when no liabil