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2004 DIGILAW 34 (AP)

Sandupatla Venu Madhav v. Nallamekala Raghavulu

2004-01-09

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THE petitioner filed OS no. 76 of 2001 in the Court of Junior Civil judge, Nakrekal, against the 3rd respondent herein, for recovery of some amounts. He also filed IA. No. 255 of 2001 under Order xxxvffl Rule 1 of the Code of Civil procedure (CPC) for attachment of the properties of the 3rd respondent before judgment. During the consideration of that ia, Respondents 1 and 2 offered themselves as sureties. Therefore, the attachment was not proceeded with. The suit was ultimately decreed on 3-10-2002. ( 2 ) SINCE the 3rd respondent did not satisfy the decree, the petitioner filed ep. No. 8 of 2003. Along with the 3rd respondent, he impleaded Respondents 1 and 2 in the EP. They, in turn, filed ea. No. 27 of 2003 under Order XXI rules 54, 64 and 66 of CPC, requesting the executing Court to proceed against the judgment-debtor and his properties. It was their case that as long as the property which was sought to be attached under order XXXVIII is in tact they cannot be proceeded with. The Executing Court allowed the IA through its order dated 24-10-2003. Hence, this Revision Petition. ( 3 ) LEARNED Counsel for the petitioner submits that Respondents 1 and 2 have undertaken to discharge the liability of the 3rd respondent under the decree, when they offered themselves as sureties in the IA filed under Order XXXVIII Rule 1 CPC. He submits that it is always open for the decree Holder to proceed against the judgment-debtor or the sureties. ( 4 ) IT is settled principle of law that in the execution of decree passed in a suit filed for recovery of money, it is open to the Decree Holder to proceed against the judgment-debtor or the sureties. These however are the types of cases where the sureties are for the suit claim itself. In such cases, the sureties are required to be impleaded as defendants for the reason that their liability is coextensive with that of the borrower. The present case does not belong to the said category of cases. Respondents 1 and 2 offered themselves as sureties in the IA filed under Order XXXVIII rule 1 of CPC. Their obligation is restricted to the extent that the property sought to be attached under Order XXXVIII is preserved till the time the suit is decreed. The present case does not belong to the said category of cases. Respondents 1 and 2 offered themselves as sureties in the IA filed under Order XXXVIII rule 1 of CPC. Their obligation is restricted to the extent that the property sought to be attached under Order XXXVIII is preserved till the time the suit is decreed. Once the property sought to be attached under order XXXVIII is available by the time the suit is decreed, the liability of the persons who offered themselves as sureties in the proceedings under XXXVIII Rule 1 CPC ceases to exist. ( 5 ) LEARNED Counsel for the petitioner submits that the property, which is sought to be attached, is under mortgage to a bank and it is difficult for the Decree Holder to proceed against the same. To a specific question as to whether such mortgage came into existence before or after the orders were passed in IA No. 255/2001, he states that it was in existence by the time the suit was filed. It means that the property remained in the same condition, as it existed when the Respondents 1 and 2 offered themselves as sureties. Therefore, no exception can be taken to the order passed by the Trial Court in allowing EA No. 27 of 2003. ( 6 ) LEARNED Counsel for the petitioner has cited certain judgments relating to the liability of the sureties. However, none of them relate to the cases of sureties in an application under Order XXXVIII Rule 1 cpc. Therefore, it is not necessary to refer to them. The Civil Revision Petition is accordingly dismissed.