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Saturday, April 5, 2014

Execution of Decree - against any party - Trial court allowed the E.P. against the execution of decree against surety salary only - their lordships of High court held that From the Judgment of the Hon"ble Supreme Court, it is clear that the decree holder can proceed against any one of the Judgment Debtors and he is not required to proceed against the principal borrower at the first instance.Therefore, the order passed by the trial Court is strictly in accordance with law and it does not require any interference in this revision.= Bejjanki Peddiraj ....Petitioner/Judgment Debtor M/s. Lavanya Chit Fund Pvt.Limited, Warangal and others....Respondents/Defendants = 2014 (March. Part ) http://judis.nic.in/judis_andhra/filename=11092

Execution of Decree - against any party - Trial court allowed the E.P. against the execution of decree against surety salary only - their lordships of High court held that From the Judgment of the Hon"ble Supreme Court, it is clear that the decree holder can proceed against any one of the Judgment Debtors and he is not required to proceed against the principal borrower at the first instance.Therefore, the order passed by the trial Court is strictly in accordance
with law and it does not require any interference in this revision.=

"The decree is a money decree against all the defendants-respondents and a
mortgage decree only against defendant-respondent No. 2 so far as the shop is
concerned. The decree does not put any fetter on the right of the decree-holder
to execute it against any party, whether as a money decree or as a mortgage
decree. It is simultaneous and is jointly and severally against all the
defendants-respondents, including the guarantor. It is the right of the decree-
holder to proceed with it in a way he likes. There is nothing in law which
provides a composite decree to be first executed only against the property.
The decree for money is a simple decree against the judgment-debtors, including
the guarantor and in no way subject to the execution of the mortgage decree
against the judgment debtor No. 2-Respondent No. 2. If, on principle, a
guarantor could be sued without even suing the principal- debtor there is no
reason, even if the decretal amount is covered by the mortgage decree to force
the decree-holder to proceed against the mortgaged property first and then to
proceed against the guarantor."
        From the Judgment of the Hon"ble Supreme Court, it is clear that the
decree holder can proceed against any one of the Judgment Debtors and he is not
required to proceed against the principal borrower at the first instance.
        Therefore, the order passed by the trial Court is strictly in accordance
with law and it does not require any interference in this revision.
        Accordingly, the Civil Revision Petition is dismissed without any order as
to costs.  Consequently, the Miscellaneous Petitions pending if any shall stand
closed.

2014 (March. Part ) http://judis.nic.in/judis_andhra/filename=11092

HON'BLE SRI JUSTICE R.KANTHA RAO      

CIVIL REVISION CASE No.5335 of 2013  

12-03-2014

Bejjanki Peddiraj ....Petitioner/Judgment Debtor                              
M/s. Lavanya Chit Fund Pvt.Limited, Warangal and
others....Respondents/Defendants

Counsel for the Petitioner: Sri A.Ravinder

Counsel for Respondents:       --

<Gist :

>Head Note:

? Cases referred:
1. 2013 (5) ALD 425
2. 1992 AIR 1740


THE HON'BLE SRI JUSTICE R.KANTHA RAO      

CIVIL REVISION PETITION NO.5335 OF 2013    


ORDER:

        Heard the learned counsel appearing for lthe petitioner and the learned
counsel appearing for the respondent No.1./Decree holder.
        This Civil Revision Petition is filed under Section 115 of C.P.C., against
the order dated 22-11-2013 in E.P.No.154 of 2013 in O.S.No.1340 of 2003 on the
file of the Principal Junior Civil Judge, Warangal.
        The brief facts of the case are that a money decree was passed in favour
of the decree holder and against the Judgment Debtors 1 to 5 for an amount of
Rs.94,450/- (Rupees ninety four thousand, four hundred and fifty only).  The
decree was put to execution in the aforesaid E.P., by the decree holder.  All
the Judgment Debtors were made respondents in the said E.P.  The Decree Holder
opted for execution of the decree against Judgment Debtor No.2 by attachment of
his salary.  The Judgment Debtor No.2 resisted the execution by filing a counter
stating that the decree holder is not supposed to seek execution against him
only who is one of the guarantors, leaving the principal debtor who is Judgment
Debtor No.1 and therefore, the Execution Petition is liable to be dismissed.
        Repelling the contention of the Judgment Debtor No.2, the learned
executing Court held that it is settled law that the decree holder can opt
execution against any of the Judgment Debtor in case the Judgment Debtors are
more than one. The prorogative available to the decree holder in the execution
proceedings cannot be denied at the whims and fancies of Judgment Debtor No.2.
The executing Court also clarified that if the Judgment Debtor No.2 is aggrieved
by the act of the decree holder realizing the decretal amount from him, he can
proceed against the principal borrower (Judgment Debtor NO.1) by filing a suit
for recovery of the amount.
        Thus, rejecting the contention of the Judgment Debtor No.2, the executing
Court ordered attachment of his salary by passing an order under Rule (48) of
Order XXI of C.P.C.  The said order is challenged in the present Civil Revision
Petition.
        Reliance is placed by the learned counsel appearing for the revision
petitioner in Jaichand T.Gangwal Vs. Shriram Chits Pvt. Ltd., Hyderabad and
others1, wherein the learned Single Judge of this Court held as follows:-
"The basic obligation to pay the decretal amount is with the prized subscriber.
In case, the 1st respondent finds any difficulty in recovering the amount from
the 2nd respondent, it can certainly take steps against other judgment debtors.
An effort as such must be made against the principal debtor. The proceedings
against one of the guarantors, keeping aside the principal debtor and the other
sureties, would certainly give scope for the collusion between the decree holder
on the one hand and some of the judgment debtors on the other. The only legal
consequence of the liability being joint and several is that the discharge by
one of them, would ensure to the benefit of others. The determination in this
behalf, however, must take place in the presence of all. If the other judgment
debtors are omitted from the array of the parties in the E.P., the one who is
singled out and proceeded against would face handicap in the context of pleading
satisfaction of the decree by others or collusion among the other parties."

        Relying on the afore cited Judgment, the learned counsel submits that the
decree holder has to first proceed against the principal borrower/Judgment
Debtor No.1 and therefore, the E.P., is liable to be dismissed.
        The facts of the case before the learned Single Judge are altogether
different from the facts of the case on hand.  However to understand the legal
position as to the liability of the Judgment Debtors when they are more than
one, it is necessary to look into the following Judgment rendered by the Hon'ble
Supreme Court in State Bank of India Vs. Indexport, Registered and others2,
wherein, the Supreme Court held as follows:-
"The decree is a money decree against all the defendants-respondents and a
mortgage decree only against defendant-respondent No. 2 so far as the shop is
concerned. The decree does not put any fetter on the right of the decree-holder
to execute it against any party, whether as a money decree or as a mortgage
decree. It is simultaneous and is jointly and severally against all the
defendants-respondents, including the guarantor. It is the right of the decree-
holder to proceed with it in a way he likes. There is nothing in law which
provides a composite decree to be first executed only against the property.
The decree for money is a simple decree against the judgment-debtors, including
the guarantor and in no way subject to the execution of the mortgage decree
against the judgment debtor No. 2-Respondent No. 2. If, on principle, a
guarantor could be sued without even suing the principal- debtor there is no
reason, even if the decretal amount is covered by the mortgage decree to force
the decree-holder to proceed against the mortgaged property first and then to
proceed against the guarantor."
        From the Judgment of the Hon"ble Supreme Court, it is clear that the
decree holder can proceed against any one of the Judgment Debtors and he is not
required to proceed against the principal borrower at the first instance.
        Therefore, the order passed by the trial Court is strictly in accordance
with law and it does not require any interference in this revision.
        Accordingly, the Civil Revision Petition is dismissed without any order as
to costs.  Consequently, the Miscellaneous Petitions pending if any shall stand
closed.
___________________  
R.KANTHA RAO,J  
Date: 12-03-2014

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