MOHAMMED P.C. Vs. CORPORATION BANK

JUDGEMENT

(1.) JUDGMENT debtor in O.S.No.67/88 of the Sub Court,Palakkad is the revision petitioner.The decree holder respondent filed E.P.No.328/88 for executing the decree against the person of the judgment debtor.The revision petitioner judgment debt of on receipt of O.21 R.37 notice,filed an objection to the E.P.He questioned the maintainability of the E.P.and also denied means to pay the decree amount.The learned Sub Judge overruled the two objections and directed issue of warrant against the judgment debtor.The judgment debtor challenges the said order in this C.R.P.

(2.) AS regards the maintainability,the learned counsel for the revision petitioner pointed out that in terms of the decree,without exhausting steps against the hypotheca the decree holder is not entitled to proceed against the person of the judgment debtor.In other words,according to the learned counsel,the personal liability of the judgment debtor is only with respect to balance of the decree amount after sale of the property scheduled to the decree.It may be noted in this connection that the said objection was overruled by the learned Sub Judge relying on the decision in State Bank of India v.Messrs Index port Registered and others AIR 1992 SC 1740.Then the learned Sub Judge found that the judgment debtor revision petitioner has means to pay the decree amount,and that he neglected or refused to pay the same,consequently he is liable to be arrested.

(3.) THEREFORE ,it is necessary first to see whether the principles laid down in State Sank of India's case AIR 1992 SC 1740 can be applied to the facts of this case.In that decision a composite decree was obtained by the decree holder and he took out execution against the 4th defendant,who was the guarantor.The 4th defendant insisted that first the decree holder must proceed against the properties scheduled to the decree.The Supreme Court held that the 4th defendant cannot require the decree holder to exhaust his remedy against the decree schedule property and then only proceed against his person.In that context,the Supreme Court observed in Para.22 of the judgment:"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 " ;.( Emphasis supplied)Thus,the very decision of the Supreme Court would show where the decree is a composite decree both personal as well as a mortgage decree,without any limitation on its execution,then the decree holder is free to proceed against the person.Therefore,the terms of the decree has to be,scrutinized.Clause.5 of the decree states: "And it is hereby further ordered and decree that if the money realized by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid,balance if legally recoverable from the defendant otherwise then out of the property sold be paid by the defendant personally." Thus the terms of the decree is clear to the effect that the personal liability of the judgment debtor is only with respect to such balance after proceeding against the hypotheca.In view of the said condition in the decree,the decree holder was not entitled to take out steps under O.21 R.37 C.P.C.before exhausting his remedy against the decree schedule property.In that view,it is not necessary to go into the question as to whether the judgment debtor is liable to be arrested at this stage,that aspect is left open.The E.P.seeks execution against the person of the judgment debtor.So,the personal execution now taken out cannot be sustained.The order under attack is therefore set aside,and the revision is allowed.