JUDGMENT

1. The relevant facts in this case are these :An action to enforce a debt was fixed for hearing on the 7th October, 1920. On that date the parties appeared in Court together with one Fateh Muhammad and there entered into an agreement to compromise the suit. The terms of the agreement were that the indebtedness in question should be discharged by certain instalments, and that, mean while, an attachment order made against the property of the defendant in the course of the suit should remain in force until the terms of the compromise had been complied with. On the same date a decree was made in accordance with this compromise and again on the same day an order was made giving the judgment-debtor liberty to sell the property attached. The property was subject to a mortgage and the order of sale provided that it should not be sold for less than the amount of the mortgage, and further ordered that the sura realised in excess of the mortgage by the sale should be lodged in Court. The only material issue of fact was, whether or not the order giving liberty to sell was made with the knowledge and approval of the surety. The judgment-creditor contends that the compromise, the order giving liberty to sell, and the decree in terms of the compromise, were recorded in the above order, and that the surety was present during the whole of the time and was fully cognisant of all that took place. The surety, on the other band, contends that, though he was present when the compromise was entered into and when the decree was made on foot of that compromise", he was not present when the order was made giving liberty to sell and knew nothing about this order.

2. Upon these facts three questions arise for determination,--

(1) Was there a variance in the compromise to which the surety had subscribed?

(2) If so, was that variation made with the knowledge and consent of the surety?

(3) Has the variation the effect of discharging the surety?

3. So far as question (2) is concerned, the issue of fact has been inferred both in the inferior Court and before the Single Judge-on appeal in favour of the surety without investigation. It would rather appear from the various orders made that the surety was cognisant of the order for liberty to sell. However, it may be assumed for the purposes of this appeal, that the surety was not so cognisant. It remains them to be considered whether the order giving liberty to sell amounts to a variance in the terms of the compromise, and, if so, whether such variance discharges the surety from all liability as from that date. The compromise decree constitutes the contract between the principal and the creditor. It is clear on the fact of the compromise decree that the surety was aware of the attachment order and approved of its continuance. The attachment order itself carries with it power in the Court to order a sale of the property attached, How then can it be said that a further order giving liberty to sell under the Court is a variance of the contract between the principal and the creditor?

4. Even if the order giving liberty to sell did in fact alter the contractual relations between the parties as embodied in the decree, this order was never acted upon. It may at the most amount to an agreement to vary the contract, but it certainly does not amount to an actual variance of its terms. We, therefore, hold that, upon the facts of this case, as they appear before us, there has been no variance in the terms of the compromise and accordingly the surety is not entitled to be discharged.

5. The appeal must, therefore, be allowed and the objections of the surety stand dismissed. The parties to pay their own costs.