Hidayatullah, J—This is a second appeal against the judgment and decree of Mr. N.H. Mujumdar. Third Additional District Judge, Akola, in Transfer civil Appeal No. 53-A of 1943, decided on 26-6-1943.

2. The suit was on the footing of a mortgage bond and the present appellant having stood surety for the repayment of the amount was joined as a party and against him relief was claimed that in case the sale of the property did not satisfy the debt, the balance should be ordered to be recovered from the surety. The trial Court passed a conditional decree and in so far as it affects the surety the wording of this decree in the appellate Court is:

In default the property described on the reverse shall be sold and in case the mortgaged house is sold and the sale proceeds do not fully satisfy the decree, the balance due shall be recovered from defendant 2...

3. The contract of guarantee is incorporated in a mortgage bond, dated 14-11-1925. This mortgage bond is Ex. P-1. It was simple mortgage and according to the covenants the mortgage debt was to be paid on or before 29-11-1927. The plaintiff (respondent 1 in this matter), brought this suit against the mortgagor and the surety (appellant before me) on 24-11-1939. The claim against the mortgagor was decreed, and it was also ordered as shown above that if the mortgaged property was found insufficient to repay the decretal amount the balance was recoverable from the surety.

4. Before taking up the two arguments urged before me on behalf of the appellant it is necessary to reproduce the material part of the mortgage bond which deals with the contract of guarantee. It reads thus:

In case the mortgaged property passes to others because of any body's rights in any way being found to the property mortgaged by the debtor, I will pay your amount mentioned above with sharti (penal or conditional) interest. I further agree that I myself will personally make good the whole of the deficit also that may be found on the sale of the mortgaged property

5. It was argued that the suit against the surety-appellant should have been brought within six years from the date of default, namely, 29-11-1927. It was also argued that the suit was premature inasmuch as this surety had agreed to make good the deficit found after the sale of the hypothecated property. These two arguments are destructive of each other. In view of what I hold on the second argument it is not necessary to consider the first.

6. A contract of guarantee must be construed strictly in favour of the surety. This is settled law: Pannaji Devichand v. Basappa Virappa, 1943 AIR(Bom) 243. Further, under Section 128, Contract Act the liability of a surety is co-extensive with that of the principal debtor unless it is otherwise provided for by the contract. The contract of guarantee has, therefore, to be construed to find out the exact point of time when the liability of the surety arises.

7. In some cases it may be that the surety's liability may begin simultaneously with the liability of the person guaranteed. But there are cases in which this may not happen. It was held in Charu Chandra v. L. Faithful, 1919 AIR(Cal) 636 as under:

The liability of a surety does not necessarily in all cases arise simultaneously with that of the principal. It often happens that the remedy against the principal is barred when the liability of the surety arises. The question depends on the terms of the contract of guarantee by which the surety has bound himself.

8. If there is no stipulation to the contrary the liability of the surety arises at once: Brojendro Kissore v. Hindustan Co-operative Insurance Society Limited, 1918 AIR(Cal) 707. It has been held in a large number of cases that where the liability arises only on the happening of a contingency the surety is not liable on his contract until that contingency has actually happened: Kirkpatrick v. Chet Ram; Radhakisan Das v. Ajodhiya Das,1937 ALJ 1265; Bradford Old Bank Ltd. v. Sutcliff, 1918 2 KB 833, Phillips v. A.