Judgment :- 1. By consent of both the sides, the Civil Revision Petition itself is taken up for final disposal. 2. The Revision has been filed against the order or arrest in E.A. No. 154 of 1994. The counsel for the petitioner contended that the decree was passed on 4-5-1991 and thereafter the decree-holder filed E.P. No. 371 of 1991 for arrest of both the principal debtor and the guarantor, the petitioner being the guarantor. Subsequently, the principal debtor took out Insolvency proceedings and the same is pending. In view of this, the decree-holder gave up the principal debtor in the E.P. and proceeded against the petitioner alone. When the Insolvency proceeding against the principal debtor is pending, the liability of the principal debtor is under doubt and as such the decree cannot be executed against the guarantor, the petitioner herein. Further, the principal debtor himself has paid the decree amount. Having given up the principal debtor, the decree-holder cannot proceed against the guarantor alone. 3. The counsel for the respondent contended that both the pleas are raised for the first time before this Court and hence, the same cannot be entertained. Earlier, the petitioner was arrested on 29-4-1994, and he paid a sum of Rs. 100/- and thereafter released. Subsequently, the petitioner filed E.A. No. 154 of 1994 to stay the execution proceedings. In the meanwhile it is admitted that a revision has been filed before this Court on the ground that arrest was ordered without any reason and there is no finding with regard to the means of the petitioner. The said Revision was allowed, and the matter was remitted to the Executing Court. Now, once again arrest was ordered and the same is being challenged here. When the dismissal of the E.A. No. 154 of 1994 has not been challenged, it is not open to the petitioner to challenge the order of arrest. 4. I have carefully considered the contentions of both the counsel. E.A. No. 154 of 1994 has been filed by the petitioner, seeking for the stay of the execution proceedings on the basis of the pendency of I.P. No. 2 of 1992. Admittedly, the said application has been dismissed on 13.2.1995 and the order of dismissal has not been challenged. 4. I have carefully considered the contentions of both the counsel. E.A. No. 154 of 1994 has been filed by the petitioner, seeking for the stay of the execution proceedings on the basis of the pendency of I.P. No. 2 of 1992. Admittedly, the said application has been dismissed on 13.2.1995 and the order of dismissal has not been challenged. When that order has not been challenged, now it is not open to the petitioner to plead that due to the pendency of the I.P., the execution cannot be proceeded with. Having allowed it to become final, it is not open to the petitioner once again to raise the same issue before this Court. So far as the order of arrest is concerned, the lower court has passed the order only on the ground that the decree is joint and several and hence, the petitioner is liable to pay the decree debt and further, the said petition filed by the petitioner in E.A. No. 154 of 1994 has been dismissed and hence, the lower court ordered the arrest. 5. When the order of arrest is sought for, admittedly the earlier C.R.P. has been allowed and the matter has been remitted to the Executing Court to consider the matter on merits. To consider the matter on merits means not only the objection raised by the petitioner with regard to the executability of the decree but also with regard to the means in respect of the petitioner. The lower court has considered the objections raised with regard to the executability of the decree and did not give any finding with regard to the means of the petitioner and that he is evading to discharge of the decree debt in spite of having such means. In the absence of such finding, I am of the view that the order of arrest cannot be sustained. 6. Since the objection has been raised with regard to the executability of the decree also and in order to avoid any doubt before the executing Court, that question has also to be decided. It is the contention of the counsel for the petitioners that in view of the pendency of the Insolvency petition and in view of the giving up of the principal-debtor, the present Execution Petition is not maintainable. 7. Mr. It is the contention of the counsel for the petitioners that in view of the pendency of the Insolvency petition and in view of the giving up of the principal-debtor, the present Execution Petition is not maintainable. 7. Mr. S. Balasubramaniam, learned counsel for the respondent, however, contended that once the suit has been decreed and the decree is to the effect that the defendants, the principal-debtor as well as the guarantor are liable to pay the decree amount jointly and severally, it is open to the decree-holder to proceed against the guarantor for recovery of the amount. The learned counsel drew the attention of this Court to the Judgment reported in A.I.R. (39) 1952 Madras 108=64 L.W. 786 (Seetharamayya v. Kesayya) wherein it has been held as follows:— “The present case has to be considered with reference to S. 44. Provincial Insolvency Act. Section 44(2), Provincial Insolvency Act lays down: “Save as otherwise provided by sub-s. (1) an order of discharge shall release the insolvent from all debts provable under this Act.” Sub-sec. (3) of S. 44 provides that: “An order of discharge shall not release any person who at the date of the presentation of the petition was a partner or co-trustee with the insolvent, or was jointly bound or had made joint contract with him or any person who was surety for him.” It is seen that under sub. S. (3) of S. 44, Provincial Insolvency Act a person who is jointly bound or had made any contract with the insolvent or a partner on the date of the presentation of the petition is liable in spite of the insolvents discharge under sub. S. (2). If the contention of Mr. Narasaraju that the appellants case is governed by the principle stated in Subramania Chettiar v. Narayanaswami Gounder, 1950-2-M.L.J. 674 is to prevail, a surety who gets pro tanto discharge, when the principal debt is extinguished should also be released from all liability and his case will not attract the provisions of sub. S. (3). But the wording of this sub-section makes it clear that a surety comes within the meaning of sub. S.(3) because obviously a surety is one who is jointly liable with the insolvent.” 8. S. (3). But the wording of this sub-section makes it clear that a surety comes within the meaning of sub. S.(3) because obviously a surety is one who is jointly liable with the insolvent.” 8. Yet another decision referred to by the counsel for the respondent is A.I.R. 1982 S.C. 1497 (M.S.E.B., Bombay v. Official Liquidator, H.C. Ernakulam) 95 L.W. 153 (S.C.) SN wherein it has been held as follows:— “The fact the company liquidation i.e., the principal debtor has gone into liquidation also would not have any effect on the liability of the Bank i.e., the guarantor. Under Section 128 of the Indian Contract Act, the liability of the surety is co-extensive with that of the principal debor unless it is otherwise provided by the contract. A surety is no doubt discharged under S. 134 of the Indian Contract Act by any contract between the creditor and the principal debtor by which the principal debtor is released or by any act or omission of the creditor, the legal consequence of which is the discharge of the principal debtor, but a discharge which the principal debtor may secure by operation of law in bankruptcy for in liquidation proceedings in the case of a company) does not absolve the surety of his liability.” The learned counsel for the respondent further placed reliance upon the decision reported in A.I.R. 1988 Delhi 130 (Charon Singh v. Security Finance Pvt. Ltd.) wherein it has been held as follows:— “It is equally clear that after the decree has been passed making all the judgment debtors collectively liable to pay the amount to the decree holder, the decree holder has a right to recover all the amount of the decree from any of the judgment debtors and he may not pursue his remedy against one or the other judgment debtor. The provisions of Ss. 133 to 139 of the Contract Act, referred to above, apply only where the rights of the parties have not crystallised and merged in a decree of the Court. Those provisions would not apply to the judgment debtors. I find myself in agreement with the reasons and the ratio laid down in the judgments of the Madras and Kerala High Courts and express my inability to follow the decision given by Jammu and Kashmir High Court.” 9. Those provisions would not apply to the judgment debtors. I find myself in agreement with the reasons and the ratio laid down in the judgments of the Madras and Kerala High Courts and express my inability to follow the decision given by Jammu and Kashmir High Court.” 9. From the principles laid down as above, it is clear that once the suit has been decreed making the judgment-debtor liable jointly and severally, then the discharge of the principal-debtor, by operation of law, will not exclude the liability of the guarantor to pay the decree debt. Once the defendants are bound to discharge the decree debt jointly and severally, each one is liable to pay the same. But, of course, the collection should not exceed the decree amount. 10. The exception for this principle is only Section 134 of the Contract Act i.e. , only if the decree-holder gives a discharge by his own action or omission. There is no question of any implied discharge and the discharge should be specific. In this case, there is absolutely no plea that the decree-holder has given a discharge in respect of the principal-debtor in order to disentitle him to recover the decree debt. The only plea of the petitioner is that the decree-holder had given up the principal-debtor and as such is not entitled to proceed with the decree. This contention cannot be accepted, as it is open to the decree-holder to recover the decree debt from any one of the judgment-debtors. 11. For the reasons stated above, I find that the execution is maintainable. In view of the earlier finding, E.P. is remanded to the lower Court to find out the means of the petitioner in order to pass an order of arrest. The Civil Revision Petition is allowed and the E.P. is remanded to the lower court for fresh disposal in accordance with law. C.M.P. No. 5367 of 1995 is dismissed. No costs.