CATHOLIC SYRIAN BANK LTD Vs. N V VARKEY

JUDGEMENT

(1.) Plaintiff in the court below is the appellant herein. The appellant advanced money to the first defendant on the guarantee of late N. J. Thomas whose legal representatives are defendants 2 to 13. A decree was claimed for the amount actually due on the charge of the property secured by N. J. Thomas and certain amounts due to the first defendant from Government on account of contract work. The defendants raised various contentions. The court ultimately passed a decree for the amount claimed. In doing so the court awarded future interest at 9 per cent per annum. The court also directed that before proceeding against the assets of the deceased, which are in the possession of defendants 2 to 13, plaintiff has to exhaust his remedies against the first defendant. Being dissatisfied with the decree plaintiff has preferred this appeal.

(2.) The first contention urged is that the court has committed an error in directing that the appellant should exhaust his remedies against the first defendant before proceeding against the assets of the guarantor, which are in the bands of defendants 2 to 13, or properties in plaint A schedule. We do not think the equitable relief granted is unjustified and uncalled for. But apparently the court committed a mistake in thinking that all the items of properties in plaint A schedule belonged to the guarantor. It is agreed that items 1 and 2 of plaint A schedule belong to the first defendant. Therefore in pursuance of the direction given by the court below, to exhaust the remedies against the first defendant, it is open to the appellant to proceed first against items 1 and 2 of plaint A schedule,

(3.) It is next pointed out that though the court directed that the appellant is entitled to collect the amount due to the first defendant by the Government under the bills mentioned in plaint B schedule that has been omitted in the decree. This is only an omission in the decree. Decree will by amended by incorporating schedule B also.