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Suit No. 552 of 1981, decided on 5th October, 1983.

‑‑Ss. 126 & 128‑Surety‑Liability‑Liability of surety, held, co extensive with that of principal debtor but in absence of a contract to contrary in case of proved default, plaintiff's action against surety would not be defeated because of failure to sue principal debtor having not exhausted his remedies against him.

A I R 1919 Lah. 355 ; A I R 1919 Sind 103 ; P L D 1982 Kar. 577 and P L D 1968 S C 83 ref.

‑‑Ss. 126 & 128‑Surety‑Liability‑Expression liability of surety co‑extensive with that of principal debtor'‑Context in which expressions used explained‑Existence of liability in first instance, held, must be established and‑,liability cannot occur until there exists a default or failure or breach on part of principal debtor‑Until--such time that a liability against principal debtor determined any action against surety, held further would be premature.

‑‑O. I, r. ifs‑‑‑Contract Act (IX of 1872), Ss. 126 & 128‑Liability of surety and principal debtor co‑extensive‑Surety's application for joining principal‑debtor to be allowed to avoid multiplicity of legal action and possibly contradictory findings on same issues.

A I R 1948 Nag. 123 ref. '

‑‑Ss. 126 & 128‑‑Surety‑Liability..‑Proved default of principal debtor, held, must pre‑exist before a right of creditor to enforce his right against surety would co‑exist with principal debtor.

‑‑‑O. 1, r. 10‑Contract Act (IX of 1872), Ss. 126 &.128‑Surety‑Liability‑‑Impleading of principal debtor, as necessary party Neither agreed failure nor adjudicated default on part of principal- debtor existing‑Impleading principal debtor as necessary party in suit against surety, held, not only proper but necessary.

A I R 197,7 Goa 4 ; Montgomery v. F. O. Y. (1895) 2 G 8 321 ; A I R 1929 Mad. 443 ; P L D 1965 Kar. 632 ; P L D 1965 Dacca 56 and Pakistan v. Abdul Wall Khan P L D 1975 S‑ C 463 ref.

Mansoorul Arfin