Patnam Sanjeevaiah v. Rao Brothers Chit Funds Pvt. Ltd.
2020-06-01
M.S.RAMACHANDRA RAO
body2020
DigiLaw.ai
JUDGMENT M.S.Ramachandra Rao, J. - This Civil Revision Petition is filed under Section 115 of Civil Procedure Code, 1908 challenging the order dt.01.11.2019 passed in E.P.No.123 of 2018 in dispute O.S.No.1088 of 2015 on the file of the I Senior Civil Judge, City Civil Court, at Hyderabad. 2. The petitioner herein is one of the judgment-debtors in the said dispute No.1088 of 2015 filed by the 1st respondent against the petitioner and other respondents for recovery of amount. 3. The said dispute O.S.No.1088 of 2015 was decreed on 02.01.2016 for recovery of Rs.3,25,950/- and the petitioner and four other judgment-debtors were held jointly and severally liable to pay the said amount with interest at the rate of 18% per annum on the principal amount of Rs.2,52,500/- and costs of Rs.14,415/- were also awarded. 4. After realizing some amount totaling to Rs.2,35,000/-, the 1st respondent/Decree Holder filed E.P.No.123 of 2018 before the I Senior Civil Judge, City Civil Court, Hyderabad against the petitioner for attachment of petitioner's salary to recover Rs.2,39,188/-. 5. In the said E.P. it is alleged by the 1st respondent that in spite of the decree, the petitioner failed to pay the balance amount. 6. The petitioner filed a counter admitting that he is a surety to the judgment debtor / defendant no.1 in the above suit. He contended that he had produced the judgment-debtor no.1 before the Court and after that the judgment-debtor No.1 was accepting to pay the debt dues amount. He alleged that the judgment-debtor No.1 had paid Rs.3,75,863/-, and therefore, the question of making the petitioner pay any further amount does not arise. 7. By order dt.01.11.2019, the Court below allowed the E.P. rejecting the objections of the petitioner. 8. It observed that the dispute filed by the 1st respondent had been decreed on 02.01.2016 for Rs.3,25,950/-; and all defendants, who were five in number, were held jointly and severally liable to pay the said amount with interest at the rate of 18 per cent per annum on the principal amount of Rs.2,52,500/- and also liable to pay costs of Rs.14,415/-. 9. It then observed that only 19 E.M.I.s were paid before passing of the order dt.02.01.2016 by the judgment-debtor no.1 and the 20th installment of Rs.15,000/- was paid on 10.12.2016 after passing of the award.
9. It then observed that only 19 E.M.I.s were paid before passing of the order dt.02.01.2016 by the judgment-debtor no.1 and the 20th installment of Rs.15,000/- was paid on 10.12.2016 after passing of the award. It therefore held that there is no evidence to show that the judgment-debtor no.1 had paid Rs.3,75,863/- as is alleged by the petitioner. It also considered the photo-copy of a letter addressed to the decree-holder alleging that the judgment-debtor no.1 had agreed to pay Rs.3,30,000/- and had issued a cheque bearing No.0008382 for Rs.2,90,000/-, but observed that the said letter did not contain the signature of the decree-holder. It then referred to the three receipts dt.28.10.2016, 10.12.2016 and 08.03.2017 and held that they indicated that the judgment-debtor no.1 had paid only Rs.1,90,000/- after passing of the award. 10. It took note of the contention of the decree-holder / 1st respondent that they had filed the E.P. after deducting the amount paid by the judgment-debtor no.1 and after verification of the same, it held that the petitioner was liable to pay the balance E.P. amount of Rs.2,39,198/- subject to Section 60 of C.P.C. and directed salary attachment of the petitioner under Order 21 Rule 48 of C.P.C. 11. Assailing the same, the present Civil Revision Petition is filed. 12. The only contention of the counsel for petitioner is that since the decision in the dispute was that all of the defendants, including the petitioner, were jointly and severally liable, it was not proper for the decree holder / 1st respondent to proceed only against him by ignoring the other judgment-debtors. 13. This contention is without any merit in view of the decision of the Supreme Court in State Bank of India vs. Messrs. Indexport Registered and others, (1992) AIR SC 1740 : "13. 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. 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'. 14.
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'. 14. In Pollock and Mulla on Indian Contract and Specific Relief Act, Tenth Edition, at page no.728 it is observed thus : "Co-extensive - Surety's liability is co-extensive 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." ... ... 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 the judgment-debtor 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 mortgaged decree, to force the decree-holder to proceed against the guarantor.... .... ...." 14. Thus it is settled law that 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. Same principle applies to Execution Petitions also. 15. No other contention is advanced by the counsel for petitioner. 16. I therefore do not find any merit in the Revision and it is accordingly dismissed. No order as to costs. 17. As a sequel miscellaneous petitions pending if any, in this Civil Revision Petition, shall stand closed.