M. P. CHINNAPPA, J. ( 1 ) THE petitioner herein filed a suit SC 6622 of 1993 against the respondents for recovering a sum of Rs. 20,684. 05 Ps. + interest and costs on the allegation that the 1st respondent on the suretyship of the 2nd respondent borrowed Rs. 15,000/- on 11-11-1987 from the petitioner bank agreeing to pay interest at 16. 5% compounded quarterly on monthly instalments of Rs. 4,000/-, on the security of pigmy deposit, fixed deposit, etc. , Thereafter, the Court issued summons to the respondents/defendants. The suit summons were served on the 2nd respondent who filed written statement wherein among other things, she contended that the 1st defendant died on 6-5-1993 in Manipal Hospital. Therefore, it is contended that the suit is ab initio void as filed against a dead person. Thereafter, the application was filed for bringing the legal representatives of the deceased, 1st defendant along with the application to condone the delay, etc. Those applications came to be rejected by the court below. That order was not questioned before the superior Court and it has become final. Thereafter, the suit was dismissed against the 2nd respondent vide judgment dated 4-7-1997. Being aggrieved by the said judgment and decree dated 4-7-1997, the plaintiff filed this petition. Subsequently, the petitioner also filed LA. 1 under Order I, Rule 10 of the CPC along with the affidavit of the Bank Manager. The 2nd respondent filed her objections. By consent of both the parties, I. A. I is also taken up for consideration along with the main petition. ( 2 ) ( 3 ) THE learned Counsel for the petitioner submitted that not with standing the fact that the L. R. application filed under Order 22, Rule 4 of the CPC came to be dismissed and the same has become final and conclusive, nonetheless, the suit would not become ab initio void just because the legal representatives of one of the defendants are not brought on record. The 2nd defendant is the surety whose liability is co-extensive with that of the principal borrower. With this background, it is now necessary to consider the question as to whether the suit could proceed without the L. Rs of the deceased defendant 1 being brought on record. The 2nd defendant is the surety whose liability is co-extensive with that of the principal borrower. With this background, it is now necessary to consider the question as to whether the suit could proceed without the L. Rs of the deceased defendant 1 being brought on record. ( 4 ) THE learned Counsel for the petitioner submitted that the 2nd defendant is the co-obligant for the first defendant to borrow the loan and both of them have executed the necessary documents in favour of the Bank and that therefore even if the first defendant, the principal borrower is not made a party, still the Bank can proceed against the co-obligant/surety to recover the money. In support of his argument, he placed reliance on a decision reported in Orissa Agro Industries corporation Limited v Sarbeswar Guru and Others, wherein the Bank had filed the suit for realisation of debt against the principal debtor and the surety and the suit was dismissed against the principal debtor under order 9, Rule 5, their Lordships have held that the liability of surety is not discharged and the suit can be proceeded against the surety. The facts of the said case are squarely applicable to the facts of the present case. In this case also, the petitioner had made an application under order 22, Rule 4 of the CPC and that application was rejected. However, the first defendant died before the institution of the suit. Therefore, it was open to the plaintiff/bank to file the suit against the surety who is equally liable to pay the amount to the Bank. It is a settled law that the creditor can sue both the debtor and the surety together or he can sue the surety alone; likewise where he has sued both and obtained the decree, he in execution can proceed against the surety in the first instance. If the creditor had the option of suing the surety or any one of them without impleading the principal debtor in the suit, it cannot be said that the dismissal of the suit under Order 9, Rule 5 of the CPC against the principal debtor would automatically discharge the liability of the surety for the agreed amount in question. This view can also be supported by the statutory provision contained in Sections 128 and 137 of the Contract Act. This view can also be supported by the statutory provision contained in Sections 128 and 137 of the Contract Act. Under these circumstances, it is also necessary to refer to the terms of the agreement executed jointly by the first defendant and the 2nd defendant. According to one of the clauses contained in the agreement which reads:-"if any money payable by the borrower/s falls due and the same remains unpaid the Bank will be entitled to recover the same from the surety/ies notwithstanding the remedies the Bank have against the borrower/s"from this clause, it is abundantly clear that the Bank has reserved its right to proceed against the surety alone, if it so desires. With this background, it is abundantly clear the moment the principal debtor defaults in payment, then immediately the surety becomes liable as if he was the principal debtor. The agreement does not contain any stipulation to the effect that the creditor must exhaust his remedies against the principal debtor first before proceeding against the surety. Further, there is no controversy that once the liability of the surety arises, it is co-extensive with that of the principal debtor. The surety thus becomes liable to pay the entire amount. His liability is immediate and it is not deferred until the creditor exhausts the remedies against the principal debtor. ( 5 ) BUT the learned Counsel for the respondents placed reliance on a decision in T. Raju Setty v Bank of Baroda. In that case, the Division bench of this Court has held that if the suit is abated as against the principal debtor, it abates even as against the sureties while considering the application under Order 22, Rule 4 of the CPC. The learned Counsel for the petitioner however submitted that the case on hand is not the abatement of the suit under Order 22, Rule 4 of the CPC, on the other hand, even before the institution of the suit, the first defendant died and therefore the suit filed against the 2nd defendant is maintainable as the question of abatement does not arise. This argument appears to be reasonable in view of the fact liberty is reserved by the Bank to proceed either against both the principal borrower and surety or the principal borrower or the surety individually. This argument appears to be reasonable in view of the fact liberty is reserved by the Bank to proceed either against both the principal borrower and surety or the principal borrower or the surety individually. Under those circumstances, just because the first defendant died prior to the institution of the suit, the suit does not abate on the other hand, the petitioner could proceed against the surety ignoring the existence or non-existence of the principal borrower. Therefore, the decision cited by the learned Counsel for the petitioner in Orissa Agra's case, supra, is squarely applicable to the facts of this case. ( 6 ) THE learned Counsel for the respondent however submitted that the petitioners have not questioned the order passed by the Court below on their application for bringing the L. Rs on record, that means to say that the petitioners had no desire to bring the L. Rs of the first defendant on record. As indicated above, the dismissal of this application could not in any way affect the case of the petitioner as the suit could have proceeded against the 2nd defendant alone. Therefore, on this ground alone this petition has to be allowed. ( 7 ) HOWEVER, both the Counsel submitted their arguments on LA. I also. As stated above this application is filed to implead the proposed defendants as respondents l (a) and (b) who are the L. Rs of the 1st defendant. The respondent at the very outset submitted that this application is liable to be dismissed on the ground that the same is barred by time. ( 8 ) THE learned Counsel for the respondent however, submitted that if they are brought on record, the 2nd defendant cannot proceed against them to recover the money which the 2nd defendant would pay to the petitioner as there is no contract between the L. Rs of the 1st defendant who are to be brought on record as defendants and the 2nd defendant himself. In addition to that, the Court has to consider as to whether the suit as brought is within time as against these proposed defendants. If the suit is to be filed against the L. Rs of the 1st defendant for recovery of money, it is barred by time. A right has been accrued to the proposed defendants and that cannot be taken away by bringing them on record. If the suit is to be filed against the L. Rs of the 1st defendant for recovery of money, it is barred by time. A right has been accrued to the proposed defendants and that cannot be taken away by bringing them on record. ( 9 ) THE learned Counsel for the petitioner placed reliance on a decision in Sudarshan Trading Company v B. T. Raju and Others, wherein it is held:"a suit is not bad at its inception when there are defendants more than one, even when one of the defendants was dead prior to the institution of the suit. In such circumstances, it is permissible for the plaintiff to bring the L. Rs of the deceased on record, provided the Court should hear the objections if any, raised by the proposed L. Rs with regard to limitation". As indicated above, as on the date of this application, the claim of the plaintiff appears to be barred by time as far as these proposed defendants are concerned and this question is left open for the parties to agitate before the Trial Court. ( 10 ) THE learned Counsel for the petitioner placed reliance on a decision in Megharaj Agarwala and Others v Radheshyam Agarwala. In that case, the petitioner filed a suit for declaration of their rights and for mandatory injunction. In pursuance of the notice issued under Order I, rule 10 of the CPC defendants 3 and 4 applied for being added as party to the suit. The application was opposed by defendants 1 and 2. Under those circumstances, the Court has held that the plaintiff is entitled to amendment of plaint necessarily to specify that the leave was sought against only original defendants. In United Commercial Bank v Dharam paul Singh and Others, the High Court has discussed the provision of order 22, Rule 4 of the CPC and held that it cannot be applied to a situation where one of the defendants was not alive when the suit was instituted. It is also further held that Order 22, Rule 4 of the CPC can be invoked only if the defendant died during the pendency of the suit. However, under those circumstances, it is held that the defendants can be added as parties under Order 1, Rule 10 of the CPC. It is also further held that Order 22, Rule 4 of the CPC can be invoked only if the defendant died during the pendency of the suit. However, under those circumstances, it is held that the defendants can be added as parties under Order 1, Rule 10 of the CPC. Therefore, the application filed by the petitioner cannot be rejected solely on the ground that it is barred by time. It must go for trial giving opportunity to the proposed defendants to file their written statement and also they will have to be given full opportunity to cross-examine the witnesses and also to lead evidence, only thereafter, the Court can decide as to whether the suit can be decreed against them. As indicated above, the suit even otherwise cannot be dismissed even if the L. Rs of the 1st defendant were not brought on record. It is in other words, advantageous to the 2nd defendant who is a surety because in the event he pays the amount to the decree holder, he would be entitled to recover the amount from the 1st defendant or his legal representatives as provided under Section 145 of the Contract Act. Under those circumstances, the argument of the learned Counsel for the respondent is rejected. Accordingly, the LA. I is allowed permitting the petitioners to bring the L. Rs of the 1st defendant as defendants l (a) and l (b) under Order 1, Rule 10 of the CPC. ( 11 ) IN the result therefore, I proceed to pass the following:order the petition is allowed, the impugned order is set aside and the suit in SC 6622 of 1993 is restored to file with a direction to permit the plaintiff/petitioner to implead the proposed defendants who are the L. Rs of the 1st defendant on record as defendants l (a) and l (b) and also to provide an opportunity to file the written statement, etc. , and thereafter to proceed to consider the case, in accordance with law, in the light of the observations made above. --- *** --- .