The main legal point established in the judgment is the co-extensive liability of the surety with the principal debtor unless otherwise provided by the contract, as per Section 128 of the Contract Act.

Madhavan Nair, J.

1. The short question for consideration in this Letters Patent Appeal is whether the plaintiff-appellant is entitled to get a decree for the suit amount against defendant 2 along with defendant 1. The plaintiffs suit was for the recovery of the money due under a promissory note executed by defendant 1. Under Ex. B 1, a letter, defendant 2 guaranteed the payment of this promissory note debt. In it, he stated as follows:

Kuppuswami Chatty...who executed a pro-note on this date in your favour for Rs. 380 will pay you the principal and the interest amount thereof within three months time. If he does not so pay, I shall have the note assigned to ray name and pay you the principal and interest.

2. As the money was not paid either by defendant 1 or 2, the plaintiff instituted the suit out of which this Letters Patent appeal arises against the two defendants and obtained a decree against both of them in the District Munsifs Court of Tiruthuraipundi. On appeal by defendant 2, the learned Subordinate Judge of Tanjore set aside the -decree so far as it affected him and this decree was confirmed by Wallace, J. It was alleged in the plaint that when defendant 1 did not pay the amount within the three months time, information was given to defendant 2 and when he was asked to have the aforesaid promissory note assigned in his name he did not pay the money. This allegation was denied by defendant 2 in his written statement. As there was no clear finding as to which party was responsible for the breach of the conditions in Ex. B-1, the learned Judge before deciding the case called upon the lower appellate Court to submit a finding on the following issues:

Has there been any breach of the contract set out between the plaintiff and defendant 2 in Ex. B-l? And if so, which of these two parties is responsible for that breachs.

3. The finding submitted was that defendant 2 was called upon by the plaintiff to pay the amount under Ex. B and to take over the promissory note; but that he failed to do so; and that defendant 2 is solely responsible for the breach of the contract in Ex. B-l. This finding was not challenged before the learned Judge. On this finding, the learned Advocate General argues that the appellant is entitled in law to get a decree against defendant 2 also.

4. The learned Judges reason for refusing the decree against defendant 2 may be thus stated in his own words:

The only person entitled to sue on the promissory note at present is the plaintiff and he wants a decree against defendant 1 on that note. If he has such a decree, he cannot en-force against defendant 2 a contract one term of which was that he should transfer the promissory note to defendant 2 so that the latter might be in a position to enforce it.

5. This reasoning is now pressed before us with great force by Mr. Ramachandra Aiyar on behalf of the respondent. He argues that the plaintiffs suit is for the specific performance of the contract contained in Ex. B-l and as he has by instituting the suit against defendant 1 disabled himself from performing his part of the contract, that is, assigning the note to defendant 2, he is not now entitled to get a decree against him; and ho also points out that the delivery of the promissory note to defendant 2 is, in the circumstances of the case, valueless as it has now become clearly time barred. It appears to me that this argument as well as the argument that the plaintiff is also not entitled to get damages alternatively as he has not put an end to the contract is based upon a misconstruction of the terms of Ex B-l. Beading the document as a whole, it is clear that its terms make defendant 2 a "surety" for the payment of the promissory note debt. Under Section 128, 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 only limitation on defendant 2s liability is the provision which allows a period of three months for the p