K. K. TATED, J. ( 1 ) HEARD learned Counsel for the appellant. Learned counsel appearing on behalf of respondent No. 1 is absent. Appeal against respondent No. 2 is dismissed as per Registrar's order dated 16-11-1999. ( 2 ) PRESENT appeal is preferred by original defendant No. 2 against the judgment and decree dated 26-4-1994 passed by the Civil Judge, Senior Division, ahmednagar in Special Civil Suit No. 96/1987. Present appellant is the original defendant No. 2 - guarantor, respondent No. 1 is the original plaintiff and respondent No. 2 is original defendant No. 1 - principal borrower. The plaintiff filed Special Civil Suit No. 96/1987 on 5-3-1987 in the Court of Civil Judge, senior Division, at Ahmednagar for recovery of a sum of Rs. 2,03,411-35 ps. with interest @ 18% p. a. from the date of filing of the suit till the date of decree. It is the case of the plaintiff that defendant No. 1 was doing business of building contractor in the name and style as "kolhapur Constructions", approached plaintiff-bank at Dal Mandai, Ahmednagar for loan of Rs. 61,850/- for the purpose of construction work undertaken by defendant No. 1. As per request of defendant No. 1, the plaintiff's officer accepted request of defendant No. 1 and sanctioned loan to the tune of Rs. 61,850/ -. Defendant No. 1 agreed to pay to the plaintiff-bank interest @ 16% p. a. with quarterly rests. Defendant No. 2 stood as guarantor for the repayment of entire loan amount. Defendant No. 2 as guarantor accepted defendant No. 1's liability jointly and severally. After completing all the formalities, the plaintiff paid sum of Rs. 61,850/- to defendant No. 1 on 11-5-1978 In terms of that, defendant No. 1 executed Demand Promissory Note dated 11-5-1978 and defendant No. 2 executed letter of guarantee dated 11-5-1978 in favour of the plaintiff-bank agreeing to pay jointly and severally amount advanced to defendant No. 1 with interest, cost and charges. Thereafter, defendant No. 1 failed and neglected to repay the said amount with interest and therefore, defendant No. 1 approached plaintiff-bank for extension of time. As per defendant No. 1's request, plaintiff-bank extended time for repayment of the said loan amount. At the time of extension of time, defendant No. 1 executed promissory note dated 26-2-1983 at Exhibit-62 for sum of Rs. 1,01,336- 15 ps. As per defendant No. 1's request, plaintiff-bank extended time for repayment of the said loan amount. At the time of extension of time, defendant No. 1 executed promissory note dated 26-2-1983 at Exhibit-62 for sum of Rs. 1,01,336- 15 ps. with interest @ 15% p. a. with quarterly rests till date of payment in full. At the same time, defendant No. 2 - guarantor also executed guarantee letter dated 18-2-1983 which is at Exhibit-63. In spite of extension of time for payment of loan, defendant Nos. 1 and 2 failed to pay the same and therefore, the plaintiff by their legal notice dated 11-2-1987 called upon defendant Nos. 1 and 2 to repay the loan amount with interest. In spite of the said legal notice, both the defendants failed to repay the loan amount with interest and therefore, the plaintiff-bank filed Special Civil Suit No. 96/1987 in the Court of the Civil Judge, Senior division, Ahmednagar on 5-3-1987 for recovery of Rs. 2,03,411-35 ps. with interest @ 18% p. a. from the date of filing of the suit till realisation. ( 3 ) DEFENDANT Nos. 1 and 2 appeared before the trial Court and filed their written statement. Defendant No. 1 filed his written statement at Exhibit-39 dated 12-7-1990 and defendant No. 2 filed his written statement at Exhibit-26 dated 27-7-1989. Both the defendants denied their liability for repayment of loan. After hearing both the sides, the trial Court framed the following issues. Issues Findings 1. Whether the suit is maintainable? Yes. 2. Whether the suit is expressly barred by limitation? No. 3. Whether the suit is properly presented by authorised person. Yes 4. Does the plaintiff prove that defts. have agreed to pay-interest. Yes. 5. Do defendants prove that the suit is barred by principle of Dam Duppat? No. 6. Whether this Court has jurisdiction to try this suit? Yes. 7. Is plaintiff entitled for relief claimed? Yes. 8. What order and decree? As per order below. Addl. Issues. 9. Does plff-prove that deft. No. 1 availed a loan of Rs. 61850/- with the rate of interest at 16% p. a. ? Yes. 10. Does plff. prove that deft. No. 1 executed the set of documents as pleaded in the plaint against the said availment of the loan. Yes. 11. Does plff. prove that defts. are jointly and severally liable for the suit amount. ? Yes. 12. Does plff. 61850/- with the rate of interest at 16% p. a. ? Yes. 10. Does plff. prove that deft. No. 1 executed the set of documents as pleaded in the plaint against the said availment of the loan. Yes. 11. Does plff. prove that defts. are jointly and severally liable for the suit amount. ? Yes. 12. Does plff. prove that deft. No. 1 executed the D. P. note on 26-2-80 in continuation of previous D. P. Note? Yes. 13. Is deft. No. 1 entitled for rate of interest at 6% p. a. and for suitable instalments as pleaded? No. After recording the evidence of parties, trial Court passed judgment and decree dated 26-4-1994 holding that both the defendants are jointly and severally liable to pay a sum of Rs. 2,03,411-35 ps. to the plaintiff with interest @ 18% p. a. from the date of suit till realisation in full. The trial Court further restrained defendant No. 2 from alienating, transferring by mode of transfer by way of injunction order pertaining to land Gat No. 375, area 74 Ares, and Gat No. 376 area 71 Ares situated at Raleras, Tal. Barshi, District Sholapur till realisation in full decretal amount. ( 4 ) BEING aggrieved by the judgment and decree dated 26-4-1994 passed by the Civil Judge, Senior Division, Ahmednagar in Special Civil Suit No. 96/1987, original defendant No. 2 - the appellant hereinabove preferred present appeal on several grounds. The learned Counsel appearing on behalf of the appellant restricted his argument in the present appeal on the ground that defendant No. 2 present appellant being a guarantor is not liable to pay said amount unless and until the plaintiff-bank executes the decree against original defendant No. 1 principal borrower. He contended that if the sufficient means is available to the plaintiff-bank to recover the decretal amount from the principal borrower, in that case, the guarantor is not liable to pay the loan amount. In support of his contention, the learned Counsel appearing on behalf of the appellant - original defendant No. 2 relied on the Apex Court's judgment in the matter of Ashok mahajan vs. State of U. P. and others, reported in 2006 AIR SCW 4925. ( 5 ) IT is to be noted that the present appeal is filed by the guarantor against the bank and principal borrower. ( 5 ) IT is to be noted that the present appeal is filed by the guarantor against the bank and principal borrower. The present appeal is already dismissed against the principal borrower i. e. respondent No. 2 by Registrar's order dated 16-11-1999. The appellant failed and neglected to take out appropriate proceedings for setting aside dismissal order passed by the Registrar on 16-11-1999 till the matter reached for final hearing. Learned Counsel appearing on behalf of the appellant original defendant No. 2 submits that defendant No. 1's property is available for recovery of decretal amount and in spite of that, the trial Court restrained defendant No. 2 from creating any third party right, title and interest in respect of his two landed properties i. e. Gat No. 375 area 74 Ares and Gat No. 376 area 71 ares. He submitted that the trial Court failed to appreciate that unless and until, the property of the principal debtor is sold for recovery of the decretal amount, the guarantor is not responsible to pay the amount to the bank. He submitted that the defendant No. l's property is available with the bank and in spite of that, it remained on the part of the bank to recover their dues. He further submitted that in view of the availability of the property of defendant No. 1, defendant No. 2 is not responsible to pay the decretal amount to the bank. In support of his submission, he relied on the judgment in the matter of Ashok Mahajan (supra) in which the Apex Court held that action against the guarantor cannot be taken until the property of principal debtor is sold. Head Note of the said authority reads as under: "u. P. Public Moneys (Recovery of Dues) Act (23 of 1972), SS. 3,4 Recovery of dues as arrears of land revenue Action against guarantor cannot be taken until property of principal-debtor is first sold High court directed to reconsider matter keeping in view observations of Supreme Court in 2004 (6) SCC 58 and factual scenario of instant case. " ( 6 ) I have gone through the said authority. The said authority is not applicable in the present case because in that case, the action taken against the borrower for recovery of money under U. P. Public Moneys (Recovery of Dues)Act (23 of 1972 ). " ( 6 ) I have gone through the said authority. The said authority is not applicable in the present case because in that case, the action taken against the borrower for recovery of money under U. P. Public Moneys (Recovery of Dues)Act (23 of 1972 ). Sections 3 and 4 of U. P. Public Moneys (Recovery of Dues)Act (23 of 1972) read as under : 3. Recovery of certain dues as arrears of land revenue. (1) Where any person is party (a) to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire-purchase of goods sold to him by the State Government or the Corporation, by way of financial assistance; or (b) to any agreement relating to a loan, advance or grant given to him or relating to credit in respect of, or relating to hire-purchase of goods sold to him, by a banking company or a Government company, as the case may be, under a State-sponsored scheme; or (c) to any agreement relating to a guarantee given by the State government or the Corporation in respect of a loan raised by an industrial concern; or (d) to any agreement providing that any money payable thereunder to the State Government shall be recoverable as arrears of land revenue; and such person - (i) makes any default in repayment of the loan or advance or any instalment thereof; or (ii) having become liable under the conditions of the grant to refund the grant or any portion thereof, makes any default in the refund of such grant or portion or any instalment thereof; or (iii) otherwise fails to comply with the terms of the agreement, then, in the case of State Government, such officer as may be authorised in that behalf by the State Government by notification in the Official Gazette, and in the case of the corporation or a Government Company the Managing director thereof, and in the case of a banking company, the local agent thereof, by whatever name called, may send a certificate to the Collector, mentioning the sum due from such person and requesting that such sum together with costs of the proceedings be recovered as if it were in arrear of land revenue. (2) The Collector on receiving the certificate shall proceed to recover the amount stated therein as an arrear of land revenue. (3) No suit for the recovery of any sum due as aforesaid shall lie in the Civil Court against any person referred to sub-section (1 ). 4. Savings.- (1) Nothing in section 3, shall (a) affect any interest of the State Government, the Corporation, a government company or any banking company, in any property created by any mortgage, charge, pledge or other encumbrance; or (b) bar a suit or affect any other right or remedy against any person other than a person referred to in that section, in respect of a contract of indemnity or guarantee entered into a relation to an agreement referred to in that section or in respect of any interest referred to in clause (a ). (2) Where the property of any person referred to in section 3 is subject to any mortgage, charge, pledge or other encumbrance in favour of the State Government, the Corporation, a Government company or banking company, then - (a) in every case of a pledge of goods, proceedings shall first be taken for sale of the thing pledged, and if the proceeds of such sale are less than the sum due, then proceedings shall be taken for recovery of the balance as if it were an arrear of land revenue : provided that where the State Government is of opinion that it is necessary so to do for safeguarding the recovery of the sum due to it or to the Corporation, Government company or banking company, as the case may be, it may for reasons to be recorded, direct proceedings to be taken for recovery of the sum due, as if it were an arrear of land revenue before or at the same time as proceedings are taken for sale of the thing pledged; (b) in every case of a mortgage, charge or other encumbrance on immovable property, such property or, as the case may be, the interest of the defaulter therein, shall first be sold in proceedings for recovery of the sum due from that person as if it were an arrear of land revenue, and any other proceeding may be taken thereafter only if the Collector certifies that there is no prospect of realization of the entire sum due through the first mentioned process within a reasonable time. " ( 7 ) IN that Act, there is a specific provision that if the property is mortgaged, charged, pledged or other encumbrances made in favour of the State government, the Corporation, a Government company or banking company then in that case, proceedings shall first be taken for sale of the thing pledged and if the proceeds of such sale are less than the sum due, then proceedings shall be taken for recovery of the balance as if it were an arrear of land revenue and thereafter remaining amount to be recovered from the guarantor. In any case, the said Act is not applicable in the present case. In the present case, the appellant -original defendant No. 2 stood as a guarantor as per Indian Contract Act, 1872. In any case, the said Act is not applicable in the present case. In the present case, the appellant -original defendant No. 2 stood as a guarantor as per Indian Contract Act, 1872. As per Indian Contract Act, 1872 bank can execute decree either against principal borrower and/or against guarantor as per their choice. It is the duty of the surety to pay the decretal amount. On such payment he will be subrogated to the rights of the creditor under section 140 of the Indian Contract Act, and he may then recover the amount from the principal debtor. The very object of the guarantee is defeated if the creditor is asked to postpone his remedies against the surety. In the present case, the creditor is banking company. A guarantee is a collateral security usually taken by the banker. The security will become useless if his rights against the surety can be so easily cut down. Therefore, in any case, the appellant is also liable along with the principal borrower as per the judgment and decree passed by the trial Court on 26-4-1994. ( 8 ) APEX Court in the matter of State Bank of India vs. M/s Indexport registered and others, reported in 1992 (3) SCC 159 held as under : "civil Procedure Code, 1908 - Or. 21, Rr. 30, 46, 46-A, 46-B, 46-F, 50, 72-A; Or. 34, Rr. 4, 5 and S. 47 - Execution of money decree in favour of bank Composite decree comprising a money decree personally against all the defendant-judgment debtors viz. the firm, its partners, guarantor and also a mortgage decree against one of the partners in respect of his shop mortgaged by him to secure loan from the bank - Held, decree-holder bank can execute the decree first against the guarantor without proceeding against the mortgaged property Guarantor can be sued without even suing the principal debtor - Guarantor's liability is co extensive with that of the principal debtor contract Act, 1872, S. 128. Civil Procedure Code, 1908 - No executing Court can go beyond the decree. " Relevant portion of Para 10 of the said judgment reads as under ;"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. Civil Procedure Code, 1908 - No executing Court can go beyond the decree. " Relevant portion of Para 10 of the said judgment reads as under ;"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. The execution of the money decree is not made dependent on first applying for execution of the mortgage decree. The choice is left entirely with the decree holder. The question arises whether a decree which is framed as a composite decree, as a matter of law, must be executed against the mortgage property first or can a money decree, which covers whole or part of the decretal amount covering mortgage decree can be executed earlier. There is nothing in law which provides such a composite decree to be first executed only against the property. " Para 22 of the said judgment reads as under :" Para 22 of the said judgment reads as under :"22. 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 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 that above-quoted observations in Manku Narayan case 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. For a simple mortgage decree as prescribed in Form No. 5 of Appendix 'd' of the Code of Civil Procedure it could be so because the decree provides like that. For a simple mortgage decree as prescribed in Form No. 5 of Appendix 'd' of the Code of Civil Procedure it could be so because the decree provides like that. It is only when the sum realised on sale of the mortgaged property is insufficient then the judgment-debtor can be proceeded with personally. But the observations of the Court in Manku Narayana case that even if the two portions of the decree are severable and merely because a portion of the decretal amount is covered by the mortgage decree, the decree-holder, per force has to proceed against the mortgaged property first are not based on any principle of law. With all due respect to the learned Judges, in the light of the observations made by us earlier, we are constrained to observe that Manku Narayana case was not correctly decided. " ( 9 ) IT is not necessary to go into other facts of the present case because learned Counsel appearing on behalf of the appellant restricted his argument only on the point that action against the guarantor cannot be taken until property of the principal debtor is first sold. ( 10 ) IN view of the abovementioned facts and circumstances, I do not find any merits in the present First Appeal. First Appeal is dismissed with no order as to costs. Appeal dismissed.