Judgment : The subject matter of this revision is comparatively simple, but it provides the platform to discuss certain important aspects. One G. Nagasuvarnamani, 2nd respondent herein, is a prized subscriber of the 1st respondent-Chit Fund Company. Surety was obtained from as many as 6 persons viz., the petitioner and respondents 3 to 7, for ensuring payment of instalments of the chit. On default being committed by the 2nd respondent, the 1st respondent filed O.S.No.54 of 2002 in the Court of Senior Civil Judge, Kadapa. The suit was decreed on 02.01.2003 for a sum of Rs.1,14,889/-. The 1st respondent got the decree transferred to the Court of Senior Civil Judge, Proddatur and filed E.P. No.129 of 2004, under Rule 37 of Order XXI C.P.C., against judgment debtors 4, 6 and 7 viz., respondents 5,7 and the petitioner herein, for their arrest. Respondents 5 and 7 remained ex parte. Therefore, the petitioner alone contested the matter. Through its order, dated 22.10.2007, the executing Court came to the conclusion that though the petitioner is possessed of sufficient means to pay the decretal amount, he did not honour the decree and accordingly, directed his arrest. This Civil Revision Petition is filed against the order in E.P.No.129 of 2004. Learned counsel for the petitioner submits that there was absolutely no basis for the 1st respondent in choosing to proceed only against three judgment debtors that too selectively against the petitioner alone, leaving aside the principal debtor and the other sureties. He contends that the liability of the sureties is co-extensive with that of the principal debtor and unless steps are taken against the principal debtor also, it would become untenable for the executing Court to enforce the decree. He further contends that even otherwise, the liability of a surety is proportionate and there is no legal basis for placing the entire burden upon the petitioner alone. He has relied upon certain precedents. Learned counsel for the 1st respondent, on the other hand, submits that being a surety, the petitioner is equally liable to pay the entire decretal amount and it is always competent for his client to choose either the principal debtor, or all or any of the sureties, to recover the decretal amount. He has relied upon certain precedents. Learned counsel for the 1st respondent, on the other hand, submits that being a surety, the petitioner is equally liable to pay the entire decretal amount and it is always competent for his client to choose either the principal debtor, or all or any of the sureties, to recover the decretal amount. Learned counsel further submits that as long as the principal debtor or other sureties did not discharge the debt, it becomes competent for the creditor to proceed against all or any of them and that the order under revision does not suffer from any illegality or infirmity. He too placed reliance upon certain authorities. That the petitioner is one of the sureties for repayment of the amount by the 2nd respondent to the 1st respondent, is a matter of record. It is also not in dispute that the suit filed by the 1st respondent was decreed and that the decree became final. In paragraph 3 of the affidavit filed in support of the E.P., the 1st respondent stated as under: "I submit that the suit filed by the company was decreed on 2/1/03 for Rs.1,14,889/-against all the defendants. After decree, even after repeated demands, the respondents Judgment debtors did not pay the amount due by them. Hence, I have filed this execution petition against the judgment debtors No.4,6,7 for recovery of the E.P. amount of Rs.1,33,790/-." (emphasis supplied) This was followed by the facts, relating to the solvency of judgment debtors 4, 6 and 7 and the ultimate prayer for steps against them. Nothing is stated as to why he has picked up judgment debtors 4, 6 and 7, and left aside the principal debtor, and other sureties. The learned counsel for the petitioner submits that such a course is impermissible in law and places reliance upon the Judgment of this Court in G. Lakshmaiah vs. State Bank of Hyderabad ( 2005(3) ALD 407 ). That was a case, where the decree holder proceeded against the principal debtor, and after recovering certain amount, proceedings were initiated against the surety. Such a course was sought to be justified on the basis of the Judgment of the Supreme Court in State bank of India vs. M/s. Indexport Registered (1992(3) SUPREME COURT CASES 159), which, in turn, arose out of a mortgage decree. Such a course was sought to be justified on the basis of the Judgment of the Supreme Court in State bank of India vs. M/s. Indexport Registered (1992(3) SUPREME COURT CASES 159), which, in turn, arose out of a mortgage decree. After making reference to the Judgment of the Supreme Court, this Court observed as under: "The judgment of the Supreme Court, referred to above, no doubt, accorded unbridled discretion to a decree-holder, to proceed against the principal-debtor, or the surety. However, once the judgment-debtor has chosen to proceed against any of them, and realized the decretal amount to certain extent, it is difficult to concede to him, the freedom to proceed against the other, halfway through. It is only after he exhausts his remedies, vis--vis a party, against whom he initiated proceedings, and the decree still remains unsatisfied, that he can proceed against the other party. Otherwise, the freedom accorded to the decree-holder is prone to be misused and the judgment-debtors are likely to be harassed and subjected to hardship. It is always open to a decree-holder to proceed against the remaining judgment-debtors, if the steps taken by him and carried to their end, against one of the judgment-debtors have failed to result in full satisfaction of the decree. He cannot have the pleasure or luxury of proceeding partly against one judgment-debtor and partly against other, without carrying the execution proceedings, till the legal or logical end. Otherwise, the object of the execution proceedings ceases to be the one to realize the decretal amount and tends to become the one to harass the judgment-debtors." A doubt as to the correctness of this view was expressed in M.G. Brothers Finance Ltd., Yemmiganuru vs. J. Badarinath ( 2007 (1) ALD 451 ). In paragraph 6 of the judgment, the principles underlying Sections 43 and 44 of the Indian Contract Act, 1872 (for short 'the Act') were discussed and ultimately, it was observed as under: 7. The two decisions relied on by the executing Court did not consider the effect of Sections 43 and 44 of the Act or the ratio in the decision of the Apex Court in M/s. Indexport Registered's case (supra), that the decree holder is entitled to proceed against the guarantor for execution of the decree in the first instance without proceeding against the principal debtor. When the law in force and the decree do not lay down any fetters on the right of the decree holder to proceed against any of the judgment-debtors for recovery of the amount due under the decree from any of the judgment-debtors of his choice, it is not for the Court to state what amount the decree holder should realize from which of the judgment-debtors under the decree. It is for the decree holder to decide what amount he should recover from which judgment-debtor. Therefore, in my considered opinion, the executing Court was in error in dismissing the E.P. on the ground that the revision petitioner, who earlier had proceeded against the other judgment-debtors, has to proceed against them only but cannot proceed against the fourth respondent, because revision petitioner, as decree holder, has absolute right to proceed against any or all the judgment-debtors. No judgment-debtor has a right to say that he is not bound by the decree. His right is only to claim contribution from the other judgment-debtors if they happen to be co-sureties. If he happens to be a guarantor, his right is to proceed against the principal debtor for the recovery of the amount paid by him to the decree holder. Therefore, an occasion arises to discuss the purport of certain provisions of the Act. Chapter IV of the Act deals with the performance of contracts. It comprises of 2 parts. The first part, consisting of Sections 37 to 39, enlists the contracts, which must be performed, and the second part, consisting of Sections 40 to 45, identifies the persons, by whom contracts must be performed. It is beneficial to extract Sections 43 and 44 of the Act, which were relied upon by this Court in M.G.Brothers Finance Ltd.'s case (3 supra): 43. Any one of joint promisors may be compelled to perform. -- When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise. Each promisor may compel contribution -Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract. Each promisor may compel contribution -Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract. Sharing of loss by default in contribution -If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares. Explanation.- Nothing in this section shall prevent a surety from recovering from his principal, payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal. 44. Effect of release of one joint promisor.-Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee, does not discharge the other joint promisor or joint promisors; neither does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors. It is needless to mention that a contract comes into existence, when a person promises to do or to forbear from doing in favour of another for consideration. Promise can be made by one or many persons. While Section 40 of the Act mandates that it shall be the obligation of the promisor himself, to perform the contract, implying existence of only one promisor, Section 44 visualises the situation of there being more than one promisor. The provision binds all the joint promisors alike. Section 45 is the extension of the same principle, in its different dimensions. It needs to be seen as to whether or not the principle underlying these provisions can be applied, to the cases of sureties. This would be possible, if only the sureties are treated as joint promisors. If the legislature felt that the sureties stand on the same footing as joint promisors, the matter in relation thereto would have been dealt with in this very chapter. However, it devoted a separate Chapter viz., Chapter VIII, in relation to indemnity and guarentee. In Section 126 thereof, various terms, including 'surety', are defined as under: 126. "Contract of guarantee", "surety", "principal debtor" and "creditor". - A "contract of guarantee" is a contract to perform the promise, or discharge the liability, of a third person in case of his default. In Section 126 thereof, various terms, including 'surety', are defined as under: 126. "Contract of guarantee", "surety", "principal debtor" and "creditor". - A "contract of guarantee" is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the "surety"; the person in respect of whose default the guarantee is given is called the "principal debtor" and the person to whom the guarantee is given is called "creditor". A guarantee may be either oral or written. One important provision of this chapter is Section 128, which directs that the liability of the sureties shall be co-extensive with that of the principle debtor, unless it is otherwise provided. Unlike in the case of joint promisors, there are certain circumstances, which relieve the sureties, even while the obligation of the principal debtor towards the creditor remains or subsists. For instance, under Section 133 of the Act, a surety would stand discharged, if the creditor had varied the contract with the principle debtor, without the consent of the surety. Similarly, discharge of the principal debtor, by the acts or omissions of the creditor, would relieve the surety from his obligation (Section 134). Another instance is, where the creditor compounds with, or gives time to, or agrees not to sue the principal debtor. The relevant provision reads as under: 135. Discharge of surety when creditor compounds with, gives time to, or agrees not to sue, principal debtor - A contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to, or not to sue, the principal debtor, discharges the surety, unless the surety assents to such contract. If any of the eventualities mentioned above take place, the sureties stand discharged. As is the case with any other form of contract, the one between the principal debtor and surety can either be express or implied. Exceptions to the principles underlying Section 135 are contained in Sections 136 and 137, which are extracted hereunder: 136. Surety not discharged when agreement made with third person to give time to principal debtor:- where a contract to give time to the principal debtor is made by the creditor with a third person, and not with the principal debtor, the surety is not discharged. 137. Surety not discharged when agreement made with third person to give time to principal debtor:- where a contract to give time to the principal debtor is made by the creditor with a third person, and not with the principal debtor, the surety is not discharged. 137. Creditor's forbearance to sue does not discharge surety:-Mere forbearance on the part of the creditor to sue the principal debtor or to enforce any other remedy against him does not, in the absence of any provision in the guarantee to the contrary, discharge the surety. The line of distinction between an implied contract, through which a creditor gives time to the principal debtor, and mere forbearance on the part of the former to proceed against the latter, is very thin. Much would depend on the terms of contract or facts of the case. Other important provisions, which have relevance, where there are more sureties than one, are Sections 146 and 147, which read as under: 146. Co-sureties liable to contribute equally.- Where two or more persons are co-sureties for the same debt or duty, either jointly or severally, and whether under the same or different contracts, and whether with or without the knowledge of each other, the co-sureties, in the absence of any contract to the contrary, are liable, as between themselves, to pay each an equal share of the whole debt, or of that part of it which remains unpaid by the principal debtor. 147. Liability of co-sureties bound in different sums.- Co-sureties who are bound in different sums are liable to pay equally as far as the limits of their respective obligations permit. More often than not, the principles underlying Sections 43 and 44 of the Act are applied to the cases of sureties, without maintaining the distinction between joint promisors and sureties. At the first blush, one may not find much of difference between the two, but a close analysis of the relevant provisions of the Act would make the same clear and manifest. If there exist two or three joint promisors in a contract, each one of them is under obligation to perform the contract, as his companions in the contract are. Hardly there exists any primacy among the joint promisors in the context of obligation to perform. Surety on the other hand stands totally on a different footing. If there exist two or three joint promisors in a contract, each one of them is under obligation to perform the contract, as his companions in the contract are. Hardly there exists any primacy among the joint promisors in the context of obligation to perform. Surety on the other hand stands totally on a different footing. The basic and primary obligation to perform the contract is on the person defined as principal debtor and the obligation of a surety is secondary in nature. Sections 43 and 44 make it amply clear that discharge of one joint promisor would not enure to the benefit of the other joint promisor. Almost opposite results flow, as between the principal debtor and the surety. Discharge by one would discharge the other. Any transaction or deal between the creditor and the principal debtor, without the knowledge of the surety, to alter the terms of contract, or the circumstances mentioned in the provisions, such as Section 135 of the Act, would have the effect of completely relieving the surety. The attention of this Court does not appear to have been drawn to this radical difference, when it decided M.G.Brothers Finance Ltd.'s case (3 supra). Here itself, it is relevant to make a mention about the distinction between 'indemnity', on the one hand, and 'guarantee' on the other. The liability of a surety fits into the one of a guarantor. By its very nature, indemnity is larger in scope and some times, the liability of an indemnifier would outlive that of the principal debtor. Liability under a guarantee on the other hand is coextensive with that of the principal. The acclaimed author of Law of Contracts; Chitty observed in his treatise as under: "In contracts of guarantee there is a strong prima facie rule of construction that the surety's obligations are co-extensive with those of the principal debtor. Indeed as has been noted above, if the surety's obligations are not co-extensive with, but greater than those of the principal debtor, the contract is normally thought to be an indemnity and not a guarantee. Many consequences flow from the principle of co-extensiveness; in particular many of the rules relating to the discharge of the surety are often treated as dependant on this principle. Many consequences flow from the principle of co-extensiveness; in particular many of the rules relating to the discharge of the surety are often treated as dependant on this principle. But there is also a tendency to decide new questions by reference to the principle." (refer to page No.1325 in 28th Edition) At one place, the learned author observed as under: "If the contract is one of guarantee, then performance by the principal debtor which discharges him will necessarily also discharge the guarantor." (refer to page No.1331 in 28th Edition) For example, if for any reason, it becomes untenable or incompatible for the creditor, to recover the amount from the principal debtor, by that very reason, the surety stands discharged. The reason is that if the debt cannot be recovered from the principal debtor, it is equally so vis--vis the surety. That is the reason why in Bank of Bihar vs. Damodar Prasaad (AIR 1969 SUPREME COURT 297), the Supreme Court emphasized the principle underlying Section 128 of the Act, which mandates that the liability of a surety is co-extensive with that of the principal debtor. Though it is competent for a creditor to choose to proceed against the principal debtor or sureties, the presence of the principal debtor in the proceedings becomes peremptory, not for the purpose of insisting that the creditor must proceed against him, but to examine whether the debt can still be recovered from the principal debtor and to verify whether the creditor has resorted to any steps, giving rise to the consequences under Section 135 of the Act. If for any reason, it emerges that the amount cannot be recovered from the principal debtor, the whole entitlement of the creditor collapses. This is in contrast to the cases of joint promisors covered by Sections 43 and 44. To illustrate, if the promisee to a contract suffers any disability from proceeding against one of the co-promisors, his right to proceed against the other promisors does not get extinguished or erased. This is in contrast to the cases of joint promisors covered by Sections 43 and 44. To illustrate, if the promisee to a contract suffers any disability from proceeding against one of the co-promisors, his right to proceed against the other promisors does not get extinguished or erased. Reverting to the facts of the case, the 1st respondent did not chose to effectively implead the principal debtor and three sureties, though he mentioned their names in the cause title in the E.P. Across the Bar, it is represented on behalf of the first respondent that steps were not initiated against the principal debtor, on account of the fact that she was declared as insolvent under the Provisions of the Provincial Insolvency Act. If the 1st respondent felt that it suffers legal disability, from proceeding against the principal debtor, by that very reason, he suffers incapacity vis--vis others also, by operation of the principle underlying Section 128 of the Act. It has already been pointed out that Section 135 of the Act brings about discharge of surety, in case the creditor had an arrangement with the principal debtor. Such arrangement can be in the form of a composition or promise to give time, or not to sue the principal debtor. Contracts of this nature can either be express or implied. The record discloses that the 1st respondent had received certain instalments from the 2nd respondent, after the decree was passed. A sum of Rs.5,000/- was received on 30.08.2003 and Rs.3,000/- on 23.03.2004. On both the occasions, sums of Rs.376/-and 124/- respectively were collected towards "compound interest". Thereby, a situation, comparable to novation of contract, or composition comes into existence between respondents 1 and 2. It can also be inferred that on account of the payments so made, the 1st respondent has given time or agreed not to sue the 2nd respondent. If those eventualities take place, the consequences provided for under Section 135 of the Act must ensue. The failure of the 1st respondent to effectively implead the 2nd respondent or to proceed against her in the circumstances of the case would therefore attract Section 135 of the Act. If those eventualities take place, the consequences provided for under Section 135 of the Act must ensue. The failure of the 1st respondent to effectively implead the 2nd respondent or to proceed against her in the circumstances of the case would therefore attract Section 135 of the Act. Another facet is that even if the execution proceedings were otherwise tenable and legal, the obligation on the part of the petitioner, as a cosurety, was guided by Sections 146 and 147 of the Act, which have already been extracted in the preceding paragraphs. Admittedly, there is no contract to the contrary and at the most, the petitioner was liable to share the whole debt equally along with other five sureties. There was absolutely no basis for the 1st respondent to proceed only against the petitioner, for the entire amount. Further, the executing Court did not follow the procedure prescribed under various Rules of Order XXI C.P.C., in the context of directing detention of the petitioner. None of the steps contemplated under Order XXI C.P.C., before the detention of a judgment debtor can be ordered was followed. Viewed from any angle, the order passed by the executing Court cannot be sustained in law. The civil revision petition is accordingly allowed and the order under revision is set aside. There shall be no order as to costs.