An acknowledgment of liability by the principal debtor does not discharge the liability of the surety, and the surety's liability is not enforceable by reason of a written acknowledgment of liability made by the principal debtor.

The appellant is the plaintiff and the Respondents are the defendants before the Courts below —

2. The appellant/plaintiff filed the suit in O.S. No. 473 of 1979 on the file of the Ist Additional Subordinate Judges Court at Tirachirapalli for recovery of a sum of Rs. 10,952.03 and for costs on the following grounds: — The 1st defendant for valid consideration purchased an Ambassador car bearing Registration Number MDF 6482 for a hire purchase price of Rs. 18,800/- from the plaintiff under hire purchase agreement dated 13.7.1972 and agreed to pay the hire purchase amount in 24 monthly instalments at Rs. 791/- for the first instalment and the rest of 23 instalments at Rs. 783/-commencing from 13.8.1972. The defendants have also executed a promissory note dated 13.7.1972 in favour of the plaintiff for Rs. 18,800/- as collateral security for the due payment of all monies due under the hire purchase agreement. The defendants were irregular in payment of instalments but however paid only a sum of Rs. 13,319/- towards 17 instalments and have failed and neglected to pay the balance in spite of repeated demands. The 1st defendant executed the agreement as principal hirer and the 2nd defendant guaranteed due payment under the hire purchase agreement like hire money, over due compensation and the other charges as per the terms of the agreement, Hence the suit.

3. The 1st Respondent/1st defendant remained ex parte in the suit.

4. The 2nd respondent/2nd defendant alone contested the suit and filed a written statement raising the following contentions; The 2nd defendant has not signed the hire purchase agreement as a guarantor for the 1st defendant voluntarily. It is only at the bequest of the plaintiff that the plaintiff would look upon the 1st defendant alone and no liability under any circumstances would be fastened against this defendant, this defendant signed the document aforesaid of even date. This defendant is not in anyway concerned with the hire purchase transaction. This defendant has nothing to do with the vehicle. The plaintiff never demanded this defendant to pay the alleged dues. This defendant never executed the alleged promissory note on 13.7.1972. He also did not execute the promissory note as collateral security and he also did not acknowledge his liability. The suit claim against him is barred by limitation.

5. On the above pleadings and after considering the oral and documentary evidence placed before here, the learned 1st Additional Subordinate Judge at Tiruchirapalli came to the conclusion that both the defendants are liable to pay the suit claim, and the suit is not barred by limitation, and ultimately she decreed the suit as prayed for with costs, and the appellant/plaintiff was directed to proceed against the 1st defendant in the first instance for the realization of the amount, if not then as against the 2nd defendant.

6. Aggrieved against the said findings of the trial Court, the 2nd Respondant/2nd defendant herein filed the first appeal in A.S. No. 197/83 on the file of the Principal District Court at Tiruchirapalli, and the learned Principal District Judge came to the conclusion that the liability of the 2nd Respondent/2nd defendant as surety is not discharged and however the suit claim as against the 2nd defendant is barred by limitation, and so be allowed the appeal without cost and set aside the judgment and decree of the trial Court in so far as it relates to the 2nd defendant, and the suit as against the 2nd defendant was dismissed without costs.

7. Not satisfied with the findings of the first appellate Court in favour of the 2nd defendant, the appellant/plaintiff has preferred this Second Appeal. While admitting the Second Appeal my learned predecessor. His Lordship Mr. Justice S. Mohan, J.) (as he then was) framed the following substantial questions of law that arise for consideration in this Second Appeal: —

(1) Whether the liability of the 2nd defendant is not co-extensive with that of the 1st