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TMI Blog1939 (3) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in its original jurisdiction, claiming the former sum against the four trustees and the respondent. In the plaint each of the trustees was named as a defendant and after their names were added the words "All the above four are trustees of the Kyaikasan Pagoda, Thingangyun, and are sued in that capacity." By his prayer the plaintiff asked for relief against each of the defendants personally and against the respondent in particular as the trustee of Daw Dwe's trust. The sum awarded by the learned trial Judge was obviously due from the respondent and from the trustees personally, but the appellant seems to have thought that his remedy was not against the named trustees but against any one who might from time to time be trustee of the pagoda. 2. Shortly after the suit had been begun, the four trustees were removed from their position as trustees of the pagoda, and eight others were appointed in their place. The appellant thereupon made an interlocutory application asking originally to add the eight new trustees as defendants and ultimately to substitute the new trustees a place of the old. The application was granted on 20th June 1935, and thereupon the names of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his right against the surety, and that the surety on his part could still sue the principal debtor, would mean that the release or grant of time was of no effect inasmuch as the debtor would still be liable at any moment to an action at the suit of the surety. 4. Where an absolute release is given, there is no room for any reservation of remedies against the surety: see Webb v. Hewitt (1857) 3 K & J 438 and Commercial Bank of Tasmania v. Jones (1893) A.C. 313. Where however the debt has not been actually released the creditor may reserve his rights by notifying the debtor that he does so, and this reservation is effective not only where the time of payment is postponed but even where the creditor has entered into an agreement not to sue the debtor. In neither case is there any deception of the debtor since he knows that he is still exposed to a suit at the will of the surety. In England the striking out of the names of the four original trustees would not have affected the respondent's liability. A fresh action could have been brought against them at any time. But, it is said, that the law of Burma differs from the law of England in this respect and reliance is placed upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der is expressly directed to be made on such terms as may appear to the Court to be just. If no terms are inserted in the order, then in their Lordships' view the effect of withdrawing the suit against some of the defendants is to be ascertained from Rule23, Rule 1. That Order is not very happily worded, but its meaning is reasonably clear. Under its provisions, the Court may give liberty to the applicant to institute a fresh suit after a withdrawal, but if it does not do so, the plaintiff is precluded from instituting a fresh suit in respect of the same subject matter. The result however is not to release or discharge the debt, but merely to prevent the creditor from suing the principal debtor. In England an undertaking by the creditor not to sue the principal debtor or a binding agreement to give him time does not operate as a discharge of the surety, providing it is a condition of the undertaking or agreement that the rights of the creditor to sue or receive the money from the surety are reserved: see Bateson v. Gosling (1871) L.R. 7 C.P. 9 and Oriental Financial Corpn v. Overend Gurney (1871) L.R. 7 Ch 142 at page 153. 6. Similarly, a failure to sue the principal debtor un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gland, they are not applicable in Burma to the present case, because, as he maintains, Section 2 (j), Contract Act, alters the position. In his contention that Section must be read in its widest sense with the result that in India and Burma any contract in respect of which an action cannot be brought is void, and therefore the plaintiff's right to recover the debt from the original trustees being unenforceable, is void. It follows, he argues, that the principal debtors having been absolutely released, the surety is discharged. 9. If the premises were accurate the conclusion might follow, even though some of the results would be startling and unexpected. One such result would be that when the period of limitation had run out, not only would the remedy be barred, but the debt would be gone and with it all right to retain anything given as security for the debt, and all right to set off a counter liability against it. This possibility was indeed envisaged in Hajarimal v. Krishnarav (1881) 5 Bom 647 but the point was left undecided. A still more startling result, however is brought about on this construction if Section 2 (j) is read with Section 65, Contract Act, since in such a c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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