Judgment :- The appellant is the plaintiff and the Respondents are the defendants before the Courts below — 2. The appellant/plaintiff filed the suit in O.S. No. 473 of 1979 on the file of the Ist Additional Subordinate Judges Court at Tirachirapalli for recovery of a sum of Rs. 10,952.03 and for costs on the following grounds: — The 1st defendant for valid consideration purchased an Ambassador car bearing Registration Number MDF 6482 for a hire purchase price of Rs. 18,800/- from the plaintiff under hire purchase agreement dated 13.7.1972 and agreed to pay the hire purchase amount in 24 monthly instalments at Rs. 791/- for the first instalment and the rest of 23 instalments at Rs. 783/-commencing from 13.8.1972. The defendants have also executed a promissory note dated 13.7.1972 in favour of the plaintiff for Rs. 18,800/- as collateral security for the due payment of all monies due under the hire purchase agreement. The defendants were irregular in payment of instalments but however paid only a sum of Rs. 13,319/- towards 17 instalments and have failed and neglected to pay the balance in spite of repeated demands. The 1st defendant executed the agreement as principal hirer and the 2nd defendant guaranteed due payment under the hire purchase agreement like hire money, over due compensation and the other charges as per the terms of the agreement, Hence the suit. 3. The 1st Respondent/1st defendant remained ex parte in the suit. 4. The 2nd respondent/2nd defendant alone contested the suit and filed a written statement raising the following contentions; The 2nd defendant has not signed the hire purchase agreement as a guarantor for the 1st defendant voluntarily. It is only at the bequest of the plaintiff that the plaintiff would look upon the 1st defendant alone and no liability under any circumstances would be fastened against this defendant, this defendant signed the document aforesaid of even date. This defendant is not in anyway concerned with the hire purchase transaction. This defendant has nothing to do with the vehicle. The plaintiff never demanded this defendant to pay the alleged dues. This defendant never executed the alleged promissory note on 13.7.1972. He also did not execute the promissory note as collateral security and he also did not acknowledge his liability. The suit claim against him is barred by limitation. 5. This defendant has nothing to do with the vehicle. The plaintiff never demanded this defendant to pay the alleged dues. This defendant never executed the alleged promissory note on 13.7.1972. He also did not execute the promissory note as collateral security and he also did not acknowledge his liability. The suit claim against him is barred by limitation. 5. On the above pleadings and after considering the oral and documentary evidence placed before here, the learned 1st Additional Subordinate Judge at Tiruchirapalli came to the conclusion that both the defendants are liable to pay the suit claim, and the suit is not barred by limitation, and ultimately she decreed the suit as prayed for with costs, and the appellant/plaintiff was directed to proceed against the 1st defendant in the first instance for the realization of the amount, if not then as against the 2nd defendant. 6. Aggrieved against the said findings of the trial Court, the 2nd Respondant/2nd defendant herein filed the first appeal in A.S. No. 197/83 on the file of the Principal District Court at Tiruchirapalli, and the learned Principal District Judge came to the conclusion that the liability of the 2nd Respondent/2nd defendant as surety is not discharged and however the suit claim as against the 2nd defendant is barred by limitation, and so be allowed the appeal without cost and set aside the judgment and decree of the trial Court in so far as it relates to the 2nd defendant, and the suit as against the 2nd defendant was dismissed without costs. 7. Not satisfied with the findings of the first appellate Court in favour of the 2nd defendant, the appellant/plaintiff has preferred this Second Appeal. While admitting the Second Appeal my learned predecessor. His Lordship Mr. Justice S. Mohan, J.) (as he then was) framed the following substantial questions of law that arise for consideration in this Second Appeal: — (1) Whether the liability of the 2nd defendant is not co-extensive with that of the 1st defendant as per clause V of Ex.A.2? (2) Whether the suit is barred by limitation against the 2nd defendant? 8. Point No. 1: — Ex.A.2. is the hire purchase agreement dated 13.7.1972 executed by both the defendants in favour of the appellant/plaintiff. (2) Whether the suit is barred by limitation against the 2nd defendant? 8. Point No. 1: — Ex.A.2. is the hire purchase agreement dated 13.7.1972 executed by both the defendants in favour of the appellant/plaintiff. On a perusal of the same, I find that as per the terms and conditions of hire purchase agreement marked as Ex.A.2, both the defendants have undertaken to pay the instalment amount and, the follow-up charges, over due compensation for the delayed and defaulted payments and other sums due to the appellant company for the hire purchase of the Ambassador car by the 1st defendant. T hat apart, both the defendants have executed a promissory note dated 13.7.1975 marked as Ex.A.26 in favour of the appellant/plaintiff for a sum of Rs. 18,800/-In the light of these documentary evidence covered under Ex.A2 and A26, I have no hesitation to come to the conclusion that the liability of the 2nd defendant is coextensive with the liability of the 1st defendant as per Clause V of the hire purchase agreement dated 13.7.1972 marked as Ex.A.2 in this case, and consequently I answer this point in favour of the appellant/plaintiff and as against the 2nd Respondent/2nd defendant. 9. Point No. 2: — The learned counsel for the appellant/plaintiff argued that the learned first appellate Judge failed to note that the liability of the 2nd defendant is coextensive with that of the 1st defendant, and as per the hire purchase agreement marked as Ex.A.2 both the defendants are jointly liable for any claim arising out of Ex.A.2 and so the learned first appellate Judge ought to have decreed the suit as against the 2nd Respondent/2nd defendant also especially when Ex.A26 promissory note was executed in continuation of the hire purchase agreement marked as Ex.A2 executed by both the defendants jointly and severally. 10. 10. The learned counsel for the 2nd Respondant/2nd defendant repudiated the above contention and argued that the hire purchase agreement marked as Ex.A.2 is dated 13.7.1972 and the promissory note marked as Ex.A.26 is dated 13.7.1975, and so the suit ought to have been filed on or before 13.7.1978 i.e. within three years from the date of the promissory note under Ex.A26 and admittedly the suit was filed in the year 1979, and the 2nd Respondant/2nd defendant has not acknowledged his liability after the execution of the suit Promissory note under Ex.A26 and so the suit claim as against the 2nd Respondant/2nd defendant is barred by limitation. In support of the above contentions the learned counsel for the 2nd Respondent/2nd defendant has also brought to my notice three decisions reported in 1944 (I) MLJ 234, AIR 1990 Madras 115 and AIR 1980 Kerala 190. 11. The decision reported in Official Liquidators T.N. and Q. Bank Limited v. Official Assignee (1944 (1) MLJ 234 = 57 L.W. 180) pertains to the security furnished by 3rd party to set aside an ex parte decree obtained by a Bank, and the Bank later on went into liquidation, there was composition of the whole claim with the leave of the Court, and thereby the suit debt was discharged. The facts in the decision reported in 1944 (I) MLJ 234 = 57 L.W. 180 are quite different from the facts in the present case and so the decision reported in 1944 (1) MLJ 234 = 57 L.W. 180 will have no application to the facts of the present case. 12. Then the other decision of our Madras High Court reported in Indian Bank Madras v. Krishnaswamy (AIR 1990 Madras 115 = 1989 2 L.W. 105) is a case, where the loan was given by Bank to a Mill and the plaintiff in that suit stood as surety later the Mill was taken over by the Government, and there was a fresh agreement entered into between the Government and the Mill, and the fresh agreement was not made known to the surety, and therefore it was held that the surety was discharged from the liability. In the present case there is no fresh agreement entered into between the appellant/plaintiff and the 1st Respondent, 1st defendant except the letters given by the 1st defendant acknowledging his liability alone, which are marked as Exs.A.27 to A38. In the present case there is no fresh agreement entered into between the appellant/plaintiff and the 1st Respondent, 1st defendant except the letters given by the 1st defendant acknowledging his liability alone, which are marked as Exs.A.27 to A38. Therefore there was no fresh agreement as such in this case even though the 1st defendant executed letters of acknowledgement of liability wherein the 2nd Respondent/2nd defendant did not join and there is no variation of the terms of the original contract marked as Ex.A2 in this case. Therefore the decision of our Madras High Court reported in AIR 1990 Madras 115 will have no application to the facts of the present case. 13. The only decision, which will have bearing on the facts of the present case, is the decision of the Kerala High Court reported in Wandoor Jupiter Chits (P) Limited v. K.P. Mathew (AIR 1980 Kerala 190) wherein, it was held down as follows: — “Acknowledgment of the debt under Section 18 Limitation Act, which provides for a fresh period of limitation, would itself be sufficient in the context of a contract of guarantee to keep the surety’s liability alive. Suretys contract being separate and collateral could not be equated to that of a co-debtor or joint contractor within the meaning of Section 20(2) of Limitation Act so mat the surety could not plead that the written acknowledgment of the debtor could not keep his suretys liability alive. The surety could also plead discharge under Section 133 of the Contract Act since the debtors acknowledgment would not create a contract different from the one of the performance which the surety had guaranteed”. 14. The above decision of the Kerala High Court squarely applies to the facts of the present case. At the risk of repetition it must be stated that the 2nd defendant along with the 1st defendant has executed the hire purchase agreement marked as Ex.A2 and the suit promissory note marked as Ex.A26, which are dated 13.7.1972 and 13.7.1975 respectively, and therefore the suit as against the 2nd Respondent/2nd defendant ought to have been filed on or before 13.7.1978, and admittedly the suit was not filed in the year 1978 but it was filed in the year 1979. The learned counsel for the appellant/plaintiff would contend that the 1st Respondent/1st defendant has acknowledged his liability as seen from Ex.A27 to A38 and the said acknowledgment of liability will also enure to the appellant/plaintiff as against the 2nd Respondent/2nd defendant herein. It is the contention of the learned counsel for the 2nd Respondent/2nd defendant that admittedly the 2nd Respondent/2nd defendant has not acknowledged his liability subsequent to the date of the promissory note marked as Ex.A26 nor did he join in the letters of acknowledgement of liability executed by the 1st Respondent/1st defendant. No doubt the liability of the 2nd defendant is coextensive with that of the principal debtor. But the acknowledgment of liability by the 1st defendant will not amount to an acknowledgment of liability by the 2nd defendant also. It is not the case of the appellant/plaintiff that the 1st defendant represented as the agent of the 2nd defendant while executing the letters of acknowledgment of liability, and the 2nd defendant allowed himself to he represented by the 1st defendant as his agent while executing the letters of acknowledgment of liability under Ex.A27 to A38 in this case. Section 128 of the Contract Act is in the nature of interpretation clause and it is directed to define the liability of the surety upon the terms of a Contract of guarantee, and Section 128 of the Contract Act is not intended to adopt the application of the law of Limitation. There is no term in the hire purchase agreement marked as Ex.A2 to imply that the 2nd defendant would be bound by the acknowledgment made by the 1st defendant/principal debtor. Even the payment of interest by the principal debtor could not be regarded as an acknowledgment of liability by the 2nd defendant herein, and the surety viz., the 2nd defendant cannot be considered as the agent of the principal debtor, who was duly authorised to pay interest after the expiry of the period of 3 years from the date of the promissory note marked as Ex.A26, which is dated 13.7.1975 in this case. Though the liability of the principal debtor viz., the 1st defendant and the surety viz., the 2nd defendant has arisen under the same contract viz., hire purchase agreement marked as Ex.A2 in this case and the suit promissory note marked as Ex.A26 in this case, the liability of the principal debtor viz., the 1st defendant and the liability of the surety viz. the 2nd defendant are distinct after the expiry of three years since there has been no acknowledgement of liability by the 2nd defendant after the expiry of the period of 3 years from the date of the suit promissory note marked as Ex.A26 in this case. 15. To sum up, the making of an acknowledgement of liability by the principal debtor viz., the 1st defendant does not involve any variance of the original contract under Ex.A2 and Ex.A26 within the meaning of Section 133 of the Contract Act. It also does not involve the making of another contract or a fresh contract under Sections 134 and 135 whereby the creditor discharges the debtor or makes a composition with him. In fact the effect of acknowledgement of liability by the 1st defendant alone under Exs.A27 to A38 is just the contrary to the creation of another contract or fresh contract. It follows from the above discussion that there is nothing in Sections 18 and 20(2) of the Limitation Act or in the relevant provisions of the Contract Act to render the suretys collateral obligation enforceable by reason of a written acknowledgement of liability made by the principal debtor. Taking into consideration of the entire facts and circumstances, I am to hold that the suit claim as against the 2nd Respondent/2nd defendant is barred by limitation, and the Second Appeal is devoid of merits, and the same has to be dismissed with costs, and the Judgment and decree of the Principal District Court at Tiruchirapalli in A.S. No. 197 of 1983 dated 7.2.1984 are to be confirmed, and consequently I answer this point as against the appellant/plaintiff and in favour of the 2nd Respondent/2nd defendant. 16. In the result, the Second Appeal is dismissed with costs. The judgment and decree of the Principal District Court at Tiruchirapalli in A.S. No. 197 of 1983 dated 7.2.1984 are confirmed.