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Andhra High Court · body

2014 DIGILAW 396 (AP)

Bejjanki Peddiraj v. Lavanya Chit Fund Pvt. Limited

2014-03-12

R.KANTHA RAO

body2014
Judgment : Heard the learned counsel appearing for lthe petitioner and the learned counsel appearing for the respondent No.1./Decree holder. This Civil Revision Petition is filed under Section 115 of C.P.C., against the order dated 22-11-2013 in E.P.No.154 of 2013 in O.S.No.1340 of 2003 on the file of the Principal Junior Civil Judge, Warangal. The brief facts of the case are that a money decree was passed in favour of the decree holder and against the Judgment Debtors 1 to 5 for an amount of Rs.94,450/-(Rupees ninety four thousand, four hundred and fifty only). The decree was put to execution in the aforesaid E.P., by the decree holder. All the Judgment Debtors were made respondents in the said E.P. The Decree Holder opted for execution of the decree against Judgment Debtor No.2 by attachment of his salary. The Judgment Debtor No.2 resisted the execution by filing a counter stating that the decree holder is not supposed to seek execution against him only who is one of the guarantors, leaving the principal debtor who is Judgment Debtor No.1 and therefore, the Execution Petition is liable to be dismissed. Repelling the contention of the Judgment Debtor No.2, the learned executing Court held that it is settled law that the decree holder can opt execution against any of the Judgment Debtor in case the Judgment Debtors are more than one. The prorogative available to the decree holder in the execution proceedings cannot be denied at the whims and fancies of Judgment Debtor No.2. The executing Court also clarified that if the Judgment Debtor No.2 is aggrieved by the act of the decree holder realizing the decretal amount from him, he can proceed against the principal borrower (Judgment Debtor NO.1) by filing a suit for recovery of the amount. Thus, rejecting the contention of the Judgment Debtor No.2, the executing Court ordered attachment of his salary by passing an order under Rule (48) of Order XXI of C.P.C. The said order is challenged in the present Civil Revision Petition. Reliance is placed by the learned counsel appearing for the revision petitioner in Jaichand T.Gangwal Vs. Shriram Chits Pvt. Ltd., Hyderabad and others ( 2013 (5) ALD 425 ), wherein the learned Single Judge of this Court held as follows:- “The basic obligation to pay the decretal amount is with the prized subscriber. Reliance is placed by the learned counsel appearing for the revision petitioner in Jaichand T.Gangwal Vs. Shriram Chits Pvt. Ltd., Hyderabad and others ( 2013 (5) ALD 425 ), wherein the learned Single Judge of this Court held as follows:- “The basic obligation to pay the decretal amount is with the prized subscriber. In case, the 1st respondent finds any difficulty in recovering the amount from the 2nd respondent, it can certainly take steps against other judgment debtors. An effort as such must be made against the principal debtor. The proceedings against one of the guarantors, keeping aside the principal debtor and the other sureties, would certainly give scope for the collusion between the decree holder on the one hand and some of the judgment debtors on the other. The only legal consequence of the liability being joint and several is that the discharge by one of them, would ensure to the benefit of others. The determination in this behalf, however, must take place in the presence of all. If the other judgment debtors are omitted from the array of the parties in the E.P., the one who is singled out and proceeded against would face handicap in the context of pleading satisfaction of the decree by others or collusion among the other parties.” Relying on the afore cited Judgment, the learned counsel submits that the decree holder has to first proceed against the principal borrower/Judgment Debtor No.1 and therefore, the E.P., is liable to be dismissed. The facts of the case before the learned Single Judge are altogether different from the facts of the case on hand. However to understand the legal position as to the liability of the Judgment Debtors when they are more than one, it is necessary to look into the following Judgment rendered by the Hon’ble Supreme Court in State Bank of India Vs. Indexport, Registered and others (1992 AIR 1740) wherein, the Supreme Court held as follows:- “The decree is a money decree against all the defendants-respondents and a mortgage decree only against defendant-respondent No. 2 so far as the shop is concerned. 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. It is simultaneous and is jointly and severally against all the defendants-respondents, including the guarantor. 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. It is simultaneous and is jointly and severally against all the defendants-respondents, including the guarantor. It is the right of the decree-holder to proceed with it in a way he likes. There is nothing in law which provides a composite decree to be first executed only against the property. 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 No. 2Respondent No. 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 mortgage decree to force the decree-holder to proceed against the mortgaged property first and then to proceed against the guarantor.” From the Judgment of the Hon”ble Supreme Court, it is clear that the decree holder can proceed against any one of the Judgment Debtors and he is not required to proceed against the principal borrower at the first instance. Therefore, the order passed by the trial Court is strictly in accordance with law and it does not require any interference in this revision. Accordingly, the Civil Revision Petition is dismissed without any order as to costs. Consequently, the Miscellaneous Petitions pending if any shall stand closed.