JUDGMENT

Dunkley, J - The respondent brought a suit in the Township Court of Pyu against the two applicants and also another person named Tokhu on a promissory note, which was executed by the 1st applicant, Gaung She, and Tokhu. The 2nd applicant, Saw Law-die, was sued as surety on an oral contract of guarantee in connection with the payment of the amount due on this promissory note. The suit was filed on the 3rd May 1933. On the 16th May the two present applicants were present before the Court and the 1st applicant, Gaung She, filed a written statement admitting the claim of the respondent. Thereupon the respondent waived his claim against Tokhu. On the 7th June the 1st applicant was allowed to file what the learned Township Judge called an additional written statement but which was, in fact, an entirely new written statement setting up a defence to the claim, namely, that he executed the promissory note only as surety for the defendant, Tokhu, and that, as the claim against Tokhu had been waived, he was discharged under the provisions of Section 134 of the Contract Act. I agree with the learned District Judge on appeal that this new written statement constituted a fraud on the Court, for it obviously would not have been filed had not the respondent already been tricked into waiving his claim against the other debtor by the admission of the applicant, Gaung She, and that, therefore it should never have been taken into consideration. On the ground that the two applicants were sureties for the payment of the amount due on this promissory note by the principal debtor Tokhu, and that therefore, under the provisions of Section 134 of the Contract Act, when the claim against Tokhu was waived they were thereby discharged from liability, the learned Township Judge dismissed the suit against the two applicants, following the decision in Maung Po Tha v. Ko Min Pyu (1900) 1 L.B.R. 150. On appeal to the District Court the learned District Judge held that the 1st applicant Gaung She was a principal debtor and not a surety, and therefore allowed the appeal and granted a decree for the amount claimed with costs against both the applicants. Against the appellate decree the present application in revision has been filed, there being no right of second appeal.

2. In this revision two points have been argued before me on behalf of the applicants. The first is that it has not been established by evidence that the 2nd applicant, Saw Lawdie, became a surety for the payment of the amount due on this promissory note. This is a question of fact to be decided by evidence and is a matter which cannot be agitated in revision. But I would remark that I agree with the learned District Judge that the evidence on this point, consisting of that of the plaintiff and two witnesses, and the surrounding circumstances of the case are more than ample to establish that Saw Lawdie did become a surety for the two signatories of the promissory note.

3. The second point that has been raised is that the waiver of the claim against the defendant, Tokhu, must, under the provisions of Section 134 of the Contract Act, operate as a release of the two applicants, who were sureties for him, he being the only principal debtor under the promissory note.

4. In regard to the second applicant, it has been established, and, in fact, it is the case of the respondent, that he was a surety only. In regard to the first applicant, the allegation that he executed the promissory note as a surety only was not raised until after the claim against Tokhu had been already waived, and, as I have said, the first applicant should not nave been allowed to raise this contention at that stage. No issue on this matter was framed by the Township Court, but the point has been carefully considered by the learned District Judge in his appellate judgment. The question whether it has been proved that the applicant, Gaung She, executed the promissory note as a surety only depends upon whether an admission made b