1997 (9) TMI 643

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....Hindustan Bedford. The second defendant is the petitioner-judgment debtor in this civil revision petition. 3. During the pendency of the suit, the first defendant died, and the second defendant and third defendant were brought on record as Legal Representatives of the first defendant in I.A. No. 12547 of 1983. First defendant was the father and third defendant was the mother of the second defendant. Defendant No. 3 also died during the pendency of the suit. The second defendant-petitioner herein was set ex parte, and ultimately the suit was decreed directing the second defendant to pay to the plaintiff the amounts as mentioned in the decree. 4. Pursuant to the decree, E.P. No. 59 of 1992 in O.S. No. 6228 of 1981 was filed by the respo....

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.... on the first principle having regard to the plain reading of Section 128 of the Indian Contract Act, decree could not have been passed against the second defendant who was only a surety. 7. Per contra, the learned Counsel for the respondent submitted that the decree passed in the suit was not against the defendant No. 2 only in the capacity as a surety, but it is also in the capacity as a legal representative of defendant No. 1; in view of the fact that the petitioner herein, besides being a surety, is also the son of the first defendant, and after the death of the first defendant he was brought on record as his legal representative; hence it could not be said that the decree passed against the second defendant was not in order, or that....

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....pany Ltd v. Bank of Baroda A.I.R. 1977 Karn. 204 a Division Bench of the High Court of Karnataka had na occasion to consider the question of liability of the surety viz-a-viz the principal debtor. Venkatachaliah, J (As His Lordship then was) observed (Para 12): The question as to the liability of the surety, its extent and the manner of its enforcement have to be decided on first principles as to the nature and incidents of suretyship. The liability of a principal debtor and the liability of a surety which is co-extensive with that of the former are really separate liabilities, although arising out of the same transaction. Notwithstanding the fact that they may stem from the same transaction, the two liabilities are distinct, the t....