NILAKANTARAO NADIG Vs. CANARA BANK SORAB

JUDGEMENT

(1.) THE second Judgment debtor in Execution case No. 112/1994 on the file of the Munsiff and JMFC at Sorab has preferred the above Civil Revision Petition against the impugned order dated. 23-8-1996 under which, the learned Munsiff has directed to issue arrest warrant against the second judgement debtor / petitioner herein. It appears that the petitioner's arrest application was filed on 29-9-1994 and after issuing the arrest warrant on 23-8-1996, a warrant of arrest was directed to be issued against the second judgment debtor.

(2.) NOW the contention raised in grounds of revision is that minimum opportunity of hearing was not given to the petitioner. The mandatory provisions of Sec. 51 has not been followed. The Court below erred / failed to see that the repayment of the debt is secured by the mortgage of land of the 2nd respondent, who is a principal borrower and execution should issue qua the property of the principal borrower and not against the surety. The order of the Court below is contrary to the provisions of articles-21 and 14 of the Constitution of India. Reliance was also placed upon the judgment of Supreme Court reported in AIR 1992 S. C. 1740 (STATE BANK OF INDIA - VS - MESSRS. INDEXPORT REGISTERED) to the following effect :-

(3.) IN the light of the dictum of the Supreme Court referred to above, the Supreme Court has directed that it is a right of the decree-holder to proceed with any way he likes, it is not open to the petitioner herein to question the mode of execution against him, as well, even if it be a mortgage decree.