DR. B. KRISHNA BHAT v. SYNDICATE BANK, PUTTUR BRANCH, DAKSHINA KANNADA
1998-09-07
HARI NATH TILHARI
body1998
DigiLaw.ai
( 1 ) THESE two revision applications raises one common question of law. The question that has been raised is that, in the suit for recovery of money filed by the decree-holder, the revision petitioner Dr. B. Krishna Bhat was only a surety or guarantee for the payment of loan advanced by the Bank. That the suits. e. , Original Suit Nos. 7 and 8 of 1981 having been decreed by the civil Judge, Puttur, the decree-holder applied for execution of the decree by attachment and sale of the property of the surety. e. , the revision petitioner. The said case was numbered as Ex. Case no. 266 of 1991 in one case, while in another case it was numbered as Ex. Case No. 267 of 1991 ( 2 ) THE revision petitioner urged before the Court below, as has been urged before this Court as well, that the decree-holder is not entitled to proceed to execute the decree against him unless he has exhausted the remedy against the principal debtor and specifically unless he has got the movable property of the principal debtor put to sale and in particular in view of what is mentioned in the decree and to which my attention has been invited. Learned Counsel for the petitioner, here in this Court, invited my attention to Clause 4 of the decree wherein the decree-holder was directed to recover amount on a charge of the plaint 'a' schedule movable properties owned by the 1st defendant and liberty was also given to the decree-holder for sale of said properties for realisation of the decretal dues. Hence, the learned Counsel contended that, decree-holder had been directed to recover the decretal amount from the sale of 'a' schedule property owned by 1st defendant and the decree-holder could not execute the decree against the defendant 2 until he exhausts that remedy by sale of that movable property. ( 3 ) ON behalf of the respondent, Sri G. V. Thimmappaiah contended that firstly as regards movable property, defendant 1 had already disposed it of and they are not available, secondly, he submitted that the decree is joint on defendants and is in favour of the plaintiff and they have been directed to pay and it has been directed that the defendants are liable jointly and severally.
Decree does not say or provide that the decree against the guarantor or surety cannot be executed unless the decree-holder had exhausted his remedy against the judgment-debtor 1 or exhausted what is provided by sale of movable property of the judgment-debtor 1. He submitted, no doubt right is also there in favour of the decree-holder to sell the property. But it does not prevent the right of the decree-holder to proceed against his surety. ( 4 ) I have applied my mind to the contentions raised by the learned Counsel for the parties. The decree reads as under. "1. That the defendants to pay the plaintiff a sum of Rs. 28,426. 97 with interest thereon at the rate of 16. 5% p. a. from 18-3-1981 (date of suit) till the date of realisation. 2. That the defendants do also pay the plaintiff a sum of Rs. 2,065. 14 being the costs of this suit as by Memorandum annexed here below. 3. That the defendants are liable to pay the sums ordered in paras 1 and 2 above personally, jointly and severally and as ejamana of their respective families. 4. That the plaintiff do recover the sums ordered in paras 1 and 2 above from the defendants on a charge on the plaint 'a' schedule movable properties owned by the 1st defendant, The plaintiff shall be at liberty to apply for sale of the said properties for the realisation of the decretal dues. That the 4th defendant is granted time till 5-2-1982 to pay the sums ordered in paras 1 and 2 above". ( 5 ) A reading of this decree per se shows that the decree is joint against the principal debtor and the surety. Decree does not by itself hold or provide that the decree-holder cannot attach the property belonging to the surety without first exhausting his remedy by way of execution against the judgment-debtor 1 nor it has provided that until the movable property has been sold, decree cannot be executed against the surety. This being the position, it appears that right has been given to the decree-holder to execute his decree against either or both of the judgment-debtors. He may also sell the movable property, if it has been available. There being no rider, in my opinion, in the original decree itself, then decree-holder cannot be compelled to exhaust his remedy against the defendant 1 first.
He may also sell the movable property, if it has been available. There being no rider, in my opinion, in the original decree itself, then decree-holder cannot be compelled to exhaust his remedy against the defendant 1 first. When I so observe, I find support from the view expressed by their Lordships of the Supreme Court in the case of State Bank of India v M/s. Indexport registered and Others. It will be appropriate at this juncture to quote the following observations of their Lordships contained in paragraph 22 of the judgment: "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 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 mortgaged decree, to force the decree-holder to proceed against the mortgaged property first and then to proceed against the guarantor. It appears the above quoted observations in Manku Narayana's case, AIR1987 SC 1078 , JT1987 (2 )SC 24 , 1987 (1 ) SCALE669 , (1987 )2 SCC335 , 1987 (1 )UJ434 (SC ), are not based on any established principle of law and/or reasons, and in fact, are contrary to law. It, of course, depends on the facts of each case how the composite decree is drawn up. But if the composite decree is a decree which is both a personal decree as well as a mortgage decree, without any limitation on its execution, the decree-holder, in principle, cannot be forced to first exhaust the remedy by way of execution of the mortgage decree alone and told that only if the amount recovered is insufficient, he can be permitted to take recourse to the execution of the personal decree. " In view of the decision of their Lordships of the Supreme Court, I do not find any jurisdictional error in the order of the Court below challenged in these two revisions. The revision petitions as such, in my opinion, are devoid of merits and are hereby dismissed. Parties are directed to bear their own costs.