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2000 DIGILAW 132 (KAR)

NILAKANTARAO NADIG v. CANARA BANK,SORAB

2000-02-11

T.N.VALLINAYAGAM

body2000
T. N. VALLINAYAGAM, J. ( 1 ) THE second Judgment debtor in Execution case No. 112/1994 on the file of the Munsiff and JMFC at Sorab has preferred the above Civil Revision Petition against the impugned order dated. 23-8-1996 under which, the learned Munsiff has directed to issue arrest warrant against the second judgement debtor / petitioner herein. It appears that the petitioner's arrest application was filed on 29-9-1994 and after issuing the arrest warrant on 23-8-1996, a warrant of arrest was directed to be issued against the second judgment debtor. ( 2 ) NOW the contention raised in grounds of revision is that minimum opportunity of hearing was not given to the petitioner. The mandatory provisions of Sec. 51 has not been followed. The Court below erred / failed to see that the repayment of the debt is secured by the mortgage of land of the 2nd respondent, who is a principal borrower and execution should issue qua the property of the principal borrower and not against the surety. The order of the Court below is contrary to the provisions of articles-21 and 14 of the Constitution of India. Reliance was also placed upon the judgment of Supreme Court reported in AIR 1992 S. C. 1740 (STATE BANK OF INDIA - VS - MESSRS. INDEXPORT REGISTERED) to the following effect :-" Where the money decree was against all the defendants including the guarantor and a mortgage decree against one of the defendants who had mortgaged the shop with the plaintiff bank, so far as the said shop was concerned and the decree did 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, the decree holder would be entitled to proceed against the guarantor first for the execution of the decree. Moreover, it is the right of the decree holder to proceed with it in a way he likes (underline is mine ). Section - 128 of the Indian Contract Act itself provides that the "liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. Moreover, it is the right of the decree holder to proceed with it in a way he likes (underline is mine ). Section - 128 of the Indian Contract Act itself provides that the "liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. " If on principle 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. In such a case, when the said decree had become final all pleas as to the rights which the guarantor had to be taken during trial and not after the decree while execution is being levied. "another dictum of this Court reported in (1992)2 Kant, L. J. 27 was also relied upon to the following effect :-" It is also to be noted that this Court in B. K. Puttaramaiah (1st Judgment debtor v. Hajee Ibrahim Essack and Sons, By Proprietor (decree-holder), 1958, Mys. Law Journal 814 has laid down the ambit of Order-21 Rules - 37 and 40 CPC. The Court has followed the observations of His Lordship Justice Panchapakesa Ayyar rendered in Kunhiraman v. Pootheri Illath Madhavan Nair, AIR. 1957 Madras 761 which reads as follows :-The mandatory provisions of Sec. 51 must be complied with before arrest is ordered. Where the lower Court does not say that in its opinion the Judgment debtor has had, since the date of the decree, the means to pay the amount of the decree some substantial part thereof and has refused or neglected to pay the same, the order of arrest is illegal and has to be set aside. Even when the order is passed ex-parte, the provisions of the Section must be complied with. Ex-parte orders of arrest orders after contest are exactly on the same footing and Sec.-51 makes no difference whatever between the two cases. "6. Even when the order is passed ex-parte, the provisions of the Section must be complied with. Ex-parte orders of arrest orders after contest are exactly on the same footing and Sec.-51 makes no difference whatever between the two cases. "6. I have perused the order passed by the trial Court and the trial Court on the face of it has not observed the mandatory provisions as contemplated under Order-21 Rules-37 and 40 and Sec. 51 of the CPC, I am of the view that as far as the exercise of powers conferred under Sec. 51 and Rules-37 and 40 of the CPC, is concerned, Court should pass an order of arrest only after the Judgment debtor is notified and the decree-holder and the Judgment debtors are given opportunity for showing cause why the judgment-debtor should or should not be committed to Civil prison. " ( 3 ) IN the light of the dictum of the Supreme Court referred to above, the Supreme Court has directed that it is a right of the decree-holder to proceed with any way he likes, it is not open to the petitioner herein to question the mode of execution against him, as well, even if it be a mortgage decree. ( 4 ) SO far as the enquiry regarding means is concerned, it is true that the enquiry must be held and that the Court must satisfy about the means of the judgment debtor. But, in the present case, it was not made known what happened in between the period of 29-9-1994 to 12-1-1996. In any event, when the matter was pending from 1994 for a period of two years, it was certainly open to the judgment debtor as well to file his objections regarding his plea of means otherwise from the records, it is not clear as to whether such a plea was taken or not. If plea of such a nature is not taken, certainly, it is not open to the judgment debtor to complain about the conduct of the Court in a revision before this Court. I am inclined to think that the enquiry had been held and the judgment debtor was questioning the other aspect of the decree and this delay is caused because of the position of law. Therefore, the plea now taken is not sustainable. In this view, holding there is no merit, the C. R. P. is dismissed. I am inclined to think that the enquiry had been held and the judgment debtor was questioning the other aspect of the decree and this delay is caused because of the position of law. Therefore, the plea now taken is not sustainable. In this view, holding there is no merit, the C. R. P. is dismissed. No costs. --- *** --- .