Kodavali Shardrack Raju v. Shriram City Union Finance Ltd.
2019-06-07
M.GANGA RAO, M.SEETHARAMA MURTI
body2019
DigiLaw.ai
JUDGMENT : M. SEETHARAMA MURTI, J. 1. This civil revision petition, under Section 115 of the Code of Civil Procedure, 1908 by the unsuccessful petitioner-3rd JDr is directed against the order, dated 16.4.2018, of the learned X Additional District Judge, Narsapur of West Godavari District, passed in EP No. 692 of 2017 in ARC No. 364 of 2009. 2. We have heard the submissions of Sri Kumara Ratnam Tenneti, learned Counsel appearing for the petitioner-3rd JDr ['3rd JDr', for brevity] and of Sri Maheswara Rao Kunchem, learned Counsel appearing for the 1st respondent-DHr ['DHr', for short]. We have perused the material record. 3. The introductory facts, in brief, are as follows :--'The DHr having obtained an Award, filed the ARC aforementioned before the Court below for recovery of the amount due by attachment of the salary of the 3rd JDr, who is employed in Sri YNM College, Narsapur. The 3rd JDr having entered appearance filed a counter resisting the recovery proceedings. On merits and by the order impugned in this revision, the Court below over ruled the objections of the 3rd JDr and directed attachment of the salary of the 3rd JDr subject to provision of Section 60 of the Code and directed Rule 48 notice to be issued to the JDr. Aggrieved thereof, the 3rd JDr filed this revision.' 4. The case of the DHr is this:--'The Award passed by the Arbitrator has become final. The JDrs did not pay the amount due under the Award to the DHr. The 3rd JDr is a salaried employee. He is drawing a substantial monthly salary. He is also having movable and immovable properties besides gold ornaments. His salary disbursing officer is Secretary & Correspondent, Sri YNM College, Narsapur. Though the DHr made demands personally to discharge the debt, the 3rd JDr, who is having sufficient means and is capable of discharging the decree debt, willfully evaded to pay and postponed repayment. Hence, the EP is filed.' 5. The case of the 3rd JDr is this:--'Though this JDr is guarantor, the subject recovery proceedings are initiated against this JDr with ulterior intentions. The 1st JDr is also an employee and his wife is also one of the guarantors. Their earnings are sufficient to realize the amount due under the Award.
Hence, the EP is filed.' 5. The case of the 3rd JDr is this:--'Though this JDr is guarantor, the subject recovery proceedings are initiated against this JDr with ulterior intentions. The 1st JDr is also an employee and his wife is also one of the guarantors. Their earnings are sufficient to realize the amount due under the Award. The DHr filed another execution petition in EP No. 4 of 2015 against them for attachment of salary of immovable properties of the 2nd JDr. The said EP is also pending. Despite pendency of the said EP, the present EP is filed with ulterior motives, for attachment of the salary of this JDr. This JDr obtained a housing loan. Recoveries towards the said housing loan are being made from his salary. Some amounts are being deducted towards compulsory departmental deductions. He is having a big family including mother who is suffering from ill health. He is spending considerable amount on her medical needs and also on his son's education who is pursuing Intermediate course. He has got two daughters, who are also pursuing education. He is required to spend huge amounts on his children's education annually. The salary particulars of this JDr are not correctly shown by the DHr. Except the monthly salary of Rs. 20,000/-, this JDr is not having any other sources of income. After deductions, he is drawing a far lesser amount than actual salary. Hence, the EP may be dismissed.' 6. At the hearing, learned Counsel for the 3rd JDr contended as follows:--'Since an EP No. 4 of 2015 is already filed against JDrs. 1 & 2, who are wife and husband, and as the said EP for sale of immovable properties of the 2nd JDr is pending, the present EP is not maintainable. The JDrs. 1 & 2 are capable of discharging the decree debt as they are having sufficient means and sources of income. Yet, the present EP for attachment of the salary of this JDr is filed with ulterior motives and intentions. If the net salary of this JDr, which is a meagre amount, is attached, he suffers serious and irreparable loss, as his net salary is not even sufficient to maintain his family, educate his children and meet the medical needs of his mother. Simultaneous execution is not permissible under facts and in law.' 7.
If the net salary of this JDr, which is a meagre amount, is attached, he suffers serious and irreparable loss, as his net salary is not even sufficient to maintain his family, educate his children and meet the medical needs of his mother. Simultaneous execution is not permissible under facts and in law.' 7. Learned Counsel for the DHr contended that the 3rd JDr is admittedly a guarantor and that the award has become final and that the 3rd JDr failed to pay the decree debt despite demands personally made and hence, the present recovery proceedings are initiated before the Additional District Court. He further submits that the contentions of the 3rd JDr are untenable as the Court below ordered attachment of salary of the 3rd JDr as per provision of Section 60 of the Code and as the liability of the guarantor is coextensive with that of the principal debtor. 8. We have given earnest consideration to the facts and submissions. As per Rule 21 of Order XXI of the Code, the Court may in its discretion permit execution at the same time against the person and property of the JDr. There is no bar under law for simultaneously proceeding, for recovery of the decree debt, against all the JDrs, who suffered the decree. Insofar as the contentions as regards the financial obligations of the 3rd JDr and the statutory & departmental deductions from his monthly salary, what is to be noted is that by the impugned order, the Court below directed attachment of salary as per Section 60 of the Code. Therefore, the 3rd JDr cannot have any grievance. 9. Admittedly, the 3rd JDr is the guarantor. In the decision in State Bank of India v. Messers Indexport Registered and others, AIR 1992 SC 1740 , the Supreme Court held as follows: "In the present case before us the decree does not postpone the execution. The decree is simultaneous and it is jointly and severally against all the defendants including the guarantor. It is the right of the decree holder to proceed with it in a way he likes.
The decree is simultaneous and it is jointly and severally against all the defendants including the guarantor. It is the right of the decree holder to proceed with it in a way he likes. 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." In Pollock & Mulla on Indian Contract and Specific Relief Act, Tenth Edition, at Page 728, it is observed thus: "Co-extensive Surety's liability is coextensive with that of the principal debtor. A surety's liability to pay the debt is not, removed by reason of the creditor's omission. To sue the principal debtor, the creditor is not bound to exhaust his remedy against the principal before suing the surety, and a suit may be maintained against the surety though the principal has not been sued." In Chitty on Contracts 24th Edition Volume 2 at Page 1031 Paragraph 4831 it is stated as under: "Prima facie the surety may be proceeded against without demand against him, and without first proceeding against the principal debtor." There cannot be any dispute in regard to the above settled legal proposition of law. In view of the provision of Section 128 of the Indian Contract Act, 1872, the liability of the guarantor/surety is co-extensive with that of the principal debtor. Therefore, a surety has no right to restrain the execution of the decree against him until the creditor has exhausted his remedy against the principal debtor, as it is the business of the surety/guarantor to see whether the principal debtor has paid or not. The surety does not have a right to dictate terms to the creditor as to how he should make the recovery and pursue his remedies against the principal debtor, [vide: The Bank of Bihar Ltd. v. Dr. Damodar Prasad and another, AIR 1969 SC 297 ; Maharashtra State Electricity Board, Bombay v. The Official Liquidator, High Court, Ernakulam and another, AIR 1982 SC 1497 ; Union Bank of India v. Manku Narayana, AIR 1987 SC 1078 and State Bank of India v. Messrs. Indexport Registered and others (supra).] 10.
Damodar Prasad and another, AIR 1969 SC 297 ; Maharashtra State Electricity Board, Bombay v. The Official Liquidator, High Court, Ernakulam and another, AIR 1982 SC 1497 ; Union Bank of India v. Manku Narayana, AIR 1987 SC 1078 and State Bank of India v. Messrs. Indexport Registered and others (supra).] 10. In that view of the matter, we find that the objections raised by the 3rd JDr are untenable and, therefore, the Court below is justified in over ruling his objections and ordering attachment of his salary, as per the provision of Section 60 of the Code. 11. In the result, the civil revision petition is dismissed. There shall be no order as to costs. 12. Miscellaneous petitions pending, if any, shall stand closed.