K VARGHESE Vs. BHANURI KRAMAN UNNITHAN

JUDGEMENT

(1.) The decree holder is the revision petitioner. He challenges the order passed by the executing Court dated 16-8-1994, by which the executing Court directed the decree holder to proceed against the vimuktha Bhada Motor Service Society No. 4106, and not against its erstwhile Managing Director, namely, Bhanuvikraman unnithan.

(2.) The Vimuktha Bhada Motor Service society No. 4106 (hereinafter referred to as 'the Society') is a society registered under the Travancore-Cochin Library, Scientific and Charitable Societies Registration Act, 1955 (Act XII of 1955). The suit was filed by the revision petitioner against the Society for realisation of money. Pending the suit, a bus bearing Registration No. KLB 4125, belonging to the Society, was attached before judgment on 22-9-1990. Later, the suit was compromised between the parties and a compromise petition dated 1 -10-1990, was filed. On the same date on which the compromise was signed by the parties, namely on 1-10-1990, a surety bond was executed and presented before the Court which was signed by P. Kuttappan the Managing Director of the Society. Bhanuvikraman unnithan-Secretary of the Society and one b. Narayana Pillai, describing himself as surety. The surety bond states that the bus was attached and produced before the Court and was in the custody of the Court. The executants of the surety bond agreed and undertook to produce the bus before Court in case it was released to them. It is also stated in the bond that if the executants of the bond failed to produce the bus, they would be liable not only for the plaint claim but also for all other consequences personally as well as out of their properties. On accepting the surety bond dated 1-10-1990, the bus was released on 3-10-1990. The compromise petition dated 1-10-1990 was accepted by the Court on 5-10-1990 and a decree in terms of the compromise was passed. As per the terms of the compromise, the defendants agreed to pay the plaint amount in monthly instalments at the rate of Rs. 750/- per month. If default was committed, the decree holder would be entitled to realise the whole amount out of the properties of the judgment debtor as well as out of the bus, KLB 4125. It. is provided in the compromise petition that the plaintiff agreed to release the bus to the defendant on "moonnamsthanam".

(3.) Default was committed in payment of the amount as per the terms of the compromise. Execution was levied by the decree holder. It would appear that Bhanuvikraman unnithan was arrested and produced before court on 3-7-1992. Later on 3-7-1992 itself. Bhanuvikraman Unnithan filed E. A. No. 53 of 1992 stating that he signed the compromise in his capacity as the Managing Director of the Society and that the present Managing Director is one Kuttappan nair. It is also stated therein that Bhanuvikraman Unnithan has no personal liability and, therefore, he may be exonerated. As per order dated 3-8-1992, the executing court held that as per the terms of the decree, on the failure of the judgment debtor to pay the decree debt, the decree holder is at liberty to realise the amount by proceeding against the assets of the judgment debtor which includes the vehicle in question. It is also held that Bhanuvikraman Unnithan, being no longer the Managing Director of the society, is not personally liable for the decree amount. Therefore, E. A. No. 53 of 1992 was allowed and the decree holder was directed to proceed against the assets of the society.