JUDGMENT : A. Pasayat, J. - United Bank of India (hereinafter referred to as the decree holder) prayed for execution of decree passed in favour in T.R.S. No. 19 of 1985 by learned Additional subordinate Judge, Dhenkanal. Prayer was to attach vehicle bearing registration No. O.R.D. 5589 belonging to Jugal Kishore Sahoo (hereinafter referred to as the 'borrower') and to attach land building as described in schedule 'A' of the application belonging to Surindera Kumar (opp. party No. 3), and put attached properties to sale. In the execution proceeding petitioner was arrayed as opposite party No. 2. 2. Background in which the execution case name to be filed is as follows: Jugal Kishore borrowed money from the bank, and Naba Kishore, the petitioner and Sarendra Kumar opp. party No. 3) were guarantor for repayment. No property was offered for mortgage by the borrower. Preliminary decree passed by learned Additional Subordinate Judge, so far as relevant for our purpose, contained the following stipulations: .... The defendants who are jointly and severally liable are directed to pay the dues within three months hence failing which the plaintiff-bank is at liberty to realise the same in due process of law after making the decree final and for sale of the hypothecated vehicle. The sale proceeds be adjusted towards the decretal dues and in case the hypothecated vehicle is not available for sale of the sale proceeds and found to be insufficient then the mortgaged 'A' scheduled properties be sold for realisation of the decretal dues.... Undisputedly mortgage properties as described in schedule 'A' of execution application belonging to Surendra Kumar. Since there was no compliance with direction given by the learned Addl. Subordinate Judge in preliminary decree,bank moved for a final decree, and final decree inter alia contained the following stipulations: .... It is hereby ordered and decreed that the mortgage properties in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold, and that for the purpose of such sale the plaintiff shall produce before the court or such officer as it appoints, all documents in his possession or power relating to the mortgage property. In the execution proceeding initialed by the bank, which was numbered Execution Case No. 1 of 1992, in the court of learned Addl. Subordinate Judge, Dhenakanal the bank impleaded borrower Jugal Kishore and the two guarantors Viz.; Naba Kishore and Surendra.
In the execution proceeding initialed by the bank, which was numbered Execution Case No. 1 of 1992, in the court of learned Addl. Subordinate Judge, Dhenakanal the bank impleaded borrower Jugal Kishore and the two guarantors Viz.; Naba Kishore and Surendra. Both guarantors raised objection regarding maintainability of the execution proceeding, so far as they are concerned mainly on two grounds, namely (i) they are guarantors, and therefore, principal borrower should be taken to guarantors, and therefore, principal borrower should be taken to task first; (ii) as per the decree hypothecated vehicle should be attached and put to auction sale, and therefore, if decretal amount is not satisfied in full, action be taken against the principal borrower and thereafter guarantors should be taken to task. Learned Addl. Subordinate Judge overruled the prayer on the ground that there was no mention in the decree that the hypothecated vehicle has to be put to auction sale first, and no action can be taken against the guarantors unless and until the decree holders fails to execute the decree against judgment debtor No. 1, i.e. the borrower. According to him, liability being joint and several, decree holder was at liberty to execute the decree against any of the judgment debtors. 3. Learned Counsel for the petitioner submits that learned Addl. Subordinate Judge misconstrued the decree passed in the suit. According to him the above quoted portion from preliminary and final decree clearly indicate the nature of direction given. Learned Counsel for the bank on the other hand submitted that stipulations made in the preliminary decree and the final decree by learned Addl. Subordinate Judge run counter to prescriptions of Sections 122 and 140 of the Indian contract Act, 1872 (In short, the 'contract Act'). It is further submitted that learned Addl. subordinate Judge was justified in the approach because essence of the decree was that liability of borrower and guarantors was joint and several, and therefore, even if any additional condition was imposed, same was not of consequence. 4. Power of the executing court is too well known. It cannot go beyond the decree. It must take as it stands and execute according to its terms. It cannot entertain any objection that the decree was incorrect in law or on facts.
4. Power of the executing court is too well known. It cannot go beyond the decree. It must take as it stands and execute according to its terms. It cannot entertain any objection that the decree was incorrect in law or on facts. It has no power to decide the rights of parties in controversy in the suit, or added to or alter the decree, or correct an error or grant a right not granted by the decree or adjudicate that it was obtained by fraud; or that the court which passed the decree lacked pecuniary, personal or territorial jurisdiction or not properly drawn up. But the court may refuse to execute a decree which is void or a nullity e.g. where the court passing decree lacked inherent jurisdiction in respect of the subject matter of action. When the term of the decree are ambiguous, the executing court can construe and interpret the decree and ascertain its precise terms, and for this purpose can peruse the judgment and pleadings. But in the garb of interpretation the Execution Court has no power to go beyond terms of the decree and bring into existence a new decree. Learned Addl. Subordinate Judge was correct in observing that the decree holder cannot be forced to first exhaust his remedy by executing the decree against the principal borrower, and when only the amount recovered is insufficient to take recourse to the guarantors. A guarantor in common law is in no better footing than the principal borrower. It is open to the decree-holder to proceed against the guarantors first for execution of the decree. Moreover, it is the right of the decree holder to processed it in a way likes, statuary recognisition of this right is expressly made in Section 128 of the Contract Act. The position has been succinctly stated by apex court in State Bank of India Vs. Messrs. Indexport Registered and others, . 5. In Pollock and Mulla on Indian Contract and Specific Relief Act, Tenth Edition, it is observed, thus: Co-extensive - surety's liability is co-extensive with that of the principal debtor. A surety's liability to pay the debt is not removed by reason of the creditor's omission to sue the principal debtor.
Messrs. Indexport Registered and others, . 5. In Pollock and Mulla on Indian Contract and Specific Relief Act, Tenth Edition, it is observed, thus: Co-extensive - surety's liability is co-extensive with that of the principal debtor. A surety's liability to pay the debt is not removed by reason of the creditor's omission to sue the principal debtor. The creditor is not bound to exhaust his remedy against the principal before suing the surety, and a suit may be obtained against the surety though the principal has not been sued. 6. In Halsbury's Laws of England, Fourth Edition, Paragraph 159 at page 87, it has been observed that "it is not necessary for the creditor, before proceeding against the surety, to request the principal debtor to pay or to sue him, although solvent, unless this is expressly stipulated for." 7. The guarantors alone can be sued, without even suing principal debtor so long as the creditor satisfies the court that the principal debtor is in default. 8. But learned addl. Subordinate Judge seems to have missed the clear direction contained in the final decree. If there was any incorrect application of law by the trial Judge, it was open to be varied by the higher court. Executing Court is not the appropriate court to do that. Executing Court is required to take note of specific directions given in the decree. After specific directions are taken care of, general principles shall come into picture. The revision application is accordingly disposed of. No Costs.