Sir L.H. Jenkins, K.C.I.E., C.J.

1. Under section 617 of the Code of Civil Procedure the following point has been referred for our decision:-- "In the absence of any prohibition by the surety against the payment of interest by the debtor on his account, does payment of interest by the debtor within limitation give a fresh starting point for limitation against the surety also under section 20 of Act XV of 1877" It is by that section provided that when interest on a debt is before the, expiration of the prescribed period paid as such by the person liable to pay the debt or by his agent duly authorized in this behalf, a new period of limitation according to the nature of the original liability shall be computed from the time when the payment was made.

2. We have therefore to see what was the debt on which interest was paid. It arises under the bond, dated the 22nd of October, 1891, whereby one Gopal Sonu Bait, stating that for his own necessity he had borrowed 20 rupees, stipulated that after five months from the day of the bond he would pay up the amount by eight installments, paying 3 rupees a month, and that in default of payment of an installment interest at 25 per cent, should be paid. By the same document Gopal Sajanojirao Jedde stood security for the due performance of the obligation, and agreed that if the principal failed to pay, he himself would pay up the amount without pleading excuse. Gopal Sajanojirao's liability therefore was that of a surety as defined by section 126 of the Contract Act. There are thus under this document two liabilities in two different persons, Gopal Sonu's liability as the principal, Gopal Sajanojirao's as the surety. How then can the payment of interest by Gopal Sonu, the principal debtor, create a new period of limitation for the surety's debt Let us apply the words of section 20 to the case: the principal is not the person liable to pay the debt of the surety; so that even if the payment of interest could be regarded as a payment of interest on the debt of the surety, still it was not made by a person liable to pay the surety's debt. Can it then be said that there was a payment of interest on the surety's debt by an agent duly authorized in this behalf Apart from the difficulty of treating the interest as due on the surety's debt, we think this must be answered in the negative the question propounded in the reference excludes an - express authority, and (in our opinion) the relation of principal and surety does not give rise to any implied authority (see Cockrill v. Sparkes (1863) 1 H. & C. 699 and Henton v. Paddison (1893) 68 L.T. 405.

3. The actual decisions in Lindsell v. Phillips (1885) 30 Ch. D. 291 and Allison v. Frisby (1889) 43 Ch. D. 106 do not (we think) involve any principle inconsistent with the conclusion at which we have arrived; they turned on a statute and considerations which have no place here, and, in the circumstances, did not invite the discussion necessary to the determination of the present case.

4. Those cases however, are useful as a recognition of the view that the liabilities of a principal and his surety under circumstances like the present (whatever may be the case when they contract a joint and several debt) are distinct. It is no doubt provided by section 128 of the Contract Act that the liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract but that section must be read together with the Limitation Act, and not so as to nullify its provisions, limiting the time within which a suit must be brought after the accrual of a cause of action (see Hajarimal v. Krishnarav (1881) 5 Bom. 647.

5. The reference, therefore, must (in our opinion) be answered in the negative.