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10. Leave to defend having ultimately been granted, the Jute Mills filed a written statement resisting the suit. The allegations that the Jute Mills also approached the plaintiff for a term loan facility of Rs. 60 lakhs or made representation that the said loan would be duly repaid to the plaintiff with interest, etc., were denied. It was averred that the loan was, admittedly advanced to the Manufacturers Ltd. and the averments now made by the plaintiff were contrary to and inconsistent with the stand taken by it in the suit filed in the Kanpur court. It was, however, admitted that the defendant-Jute Mils executed the deed of guarantee date November 21, 1973, and also deposited with the plaintiff certain documents of title relating to the Jute Mills industrial unit situate at Kanpur, pursuant to the guarantee. The provisions of the deed of guarantee dated November 21, 1973, including, inter alia, cls. 4, 10 and 13 thereof, in so far as they purported to provide for waiver and/or of taking away and/or impairing and/or giving up of defendant's statutory right of redemption and/or the rights conferred by ss. 134, 135, 140 and 141 of the Indian Contract Act, 1972, were illegal, invalid, void and inoperative in law and could not be enforced against the defendant. It was next averred that the liability of the Jute Mills, the surety, stood discharged in view of the provisions of s. 141 of the Indian Contract Act, 1872, on account of the acts and omissions of the plaintiff, namely, (1) by filing Suit No. 315 of 1977, in the court of the Second Civil Judge, Kanpur, without impleading the defendant Jute Mills therein as a party and further by entering into a compromise with the Manufacturers Ltd. without the concurrence of the defendant and obtaining a consent decree dated October 15, 1977, (2) by getting a receiver appointed by consent of the parties in the said suit of the properties of the Manufacturers Ltd. and agreeing to the sale/disposal by the receiver of the security that had been offered by the Manufacturers Ltd., and (3) because security having already been put to sale and sold by the receiver pursuant to the said court decree dated October 15, 1977, for a sum of Rs. 45,50,101. The plant and machinery of the Manufacturers Ltd., it was alleged, were sold with the consent of the plaintiff and the receiver had received an advance of Rs. 8,50,101 from the auction purchaser. The sale had been confirmed by the Second Civil Judge, Kanpur, and had become absolute, and the claim of the plaintiff against the defendant thus stood satisfied to the extent of Rs. 45,50,101. The acts done by the plaintiff, it was alleged, were inconsistent with the rights of the defendant-Jute Mills as surety or guarantor. The plaintiff had failed and neglected to take effective steps for realisation of the price of the plant and machinery after the sale thereof which had been confirmed and that the plaintiff was not entitled decree or the costs of that suit. It was also averred that this court had no territorial jurisdiction to try the case, because the plaintiff, while obtaining leave under O. 2, r. 2, CPC, in the Kanpur suit, had represented that the suit on the basis of the mortgage would be instituted, if at all, against this defendant in that court only. It was also pleaded that the plaint did not disclose any cause of action for claiming the amount of costs. It was also averred that, according to averments made in paras. 7, 8, 9 and 10 of the plaint, the defendant was a co-obligor with the Manufacturers Ltd. and, therefore, the suit was misconceived and not maintainable.

45. The plea of the defendant, however, is that this liability stood discharged on account of the acts and omissions on the part of the plaintiff, namely, (1) filing of Suit No. 315 of 1977 in the court of the Second Civil Judge, Kanpur, for the recovery of the loan amount against the principal debtor, i.e., the Manufacturers Ltd., without impleading the defendant-Jute Mills as a party therein and, further, by entering into a compromise with the Manufacturers Ltd., without the concurrence of the present defendant and obtaining the consent decree dated October 15, 1977, and (2) by getting the receiver appointed by consent of the parties in that suit and agreeing to sale/disposal by the receiver of the security that had been offered by the Manufacturers Ltd. and getting a part of the security, i.e., the plant and machinery, put to sale and sold by the receiver in pursuance of the said court decree and giving its consent to the sale which was later on confirmed by the court.

51. An examination of the claim in the plaint and the terms of the compromise reveal that the consent decree was for the full amount of Rs. 55,27,570 with future interest from the date of the suit till final payment at 12.5% Instead of a preliminary mortgage decree, a final mortgage decree was passed. I fail to understand as to how such a decree can fall within the purview of the provisions contained in s. 135 of the Indian Contract Act. if the principal debtor, the defendant in a suit, concedes judgment by filing the written statement admitting the allegations in the plaint as correct and a decree following, can it be said that the plaintiff in that case had made a "composition" with the principal debtor within the meaning of s. 135. Obviously, no such conclusion can be drawn unless it is the result of a fraud or collusion. An honest defendant is not supposed to contest the suit when there is no defense open to him. In the present case, the terms contained in the application under). 23, r. 3, CPC, amount to admitting the claim of the plaintiff in toto. Such a consent decree would not be covered by the provisions of s. 135. Filing a suit by the creditor against the principal debtor and obtaining a decree for the full amount would not by any stretch of imagination amount to "composition" resulting in the discharge of liability of the surety. It would not make the slightest difference if the decree is a consent decree, especially in this case when the creditor by way of the consent decree got 100% relief. Ordinarily, the plaintiff would have been entitled to a preliminary mortgage decree for the amount in suit, but it obtained a final decree, such a decree has not in any way impaired or prejudiced the right of the defendant-surety and, in my considered opinion, there is no question of discharge of its liability. It may be added here that there is no suggestion even that the consent decree obtained from the Kanpur court was a result of any fraud or collusion between the creditor and the principal debtor. My view finds support from a Division Bench decision of the Bombay High Court in the case of Amin Abdul Kadar Murtasa v. Jivraj Otmal Ratnagiri Bhagidari, .

52. The fact that a reviver was appointed with the consent of the parties by the Kanpur court while passing a final decree would also not make the slightest difference. Section 51 of the CPC provides various modes for the execution of the decree and one of the modes contained in clause (d) of the said section is by appointing a receiver. Appointment of a receiver was, therefore, a step in the execution of the decree and it does not in any way affect the rights of the surety. I, consequently, hold that by filing Suit No. 315 of 1977 in the Kanpur court and obtaining a consent decree and by getting a receiver appointed under the final decree, the liability of the defendant surety does not stand discharged.