CHITTUR SERVICE CO OP BANK LTD Vs. PANKUNNY

JUDGEMENT

(1.) A decree holder filed an application for attachment and sale of the properties of one of the judgment debtors who is not the principal debtor. The application, was dismissed solely on the ground that the decree holder has not shown any reason for eliminating the principal debtor. Hence this revision at the instance of the decree holder.

(2.) A decree for money was obtained by the petitioner against three persons in an award passed as per the provisions of the Kerala Cooperative Societies Act, 1969. The decree made the three persons jointly and severally liable for the decree debt, the first among them is the principal debtor and the other two are sureties. The application is for attachment of the properties of the second judgment debtor. There is no dispute that the person, whose properties are sought to be attached, was only a surety. There is also no dispute that no step, so far, has been taken against the other two judgment debtors. The execution court dismissed the application saying that the petitioner has not given any reason for proceeding against the principal debtor.

(3.) Learned counsel for the second respondent (whose properties are sought to be attached) contended, in support of the impugned order, that the principles of equity are not completely alien to execution proceedings and hence the dismissal of the application is only consistent with such principles of equity. Reference was made to a recent decision of the Supreme Court in Union Bank of India v. Manku Narayana ( 1987 (2) SCC 335 ) to bolster up bis contention. In that case the plaintiff-bank obtained a mortgage decree against the three persons one of whom is the principal debtor and other two are guarantors for repayment of the loan, and the decree holder lookout execution proceedings against the principal debtor. The High Court in a revision filed against the order of the execution court, directed the decree holder to proceed against the mortgaged property and also the principal debtors first. The Supreme Court did not interfere with the said direction and dismissed the appeal filed by the decree holder. The decision affords no assistance in this case because the decree in that case was basically a mortgage decree. The Rules in O.34 of the Code of Civil Procedure provide that a decree holder in such a decree shall be entitled to have the mortgaged properties sold in realisation of the mortgage debt. The Supreme Court declined to interfere with the said direction passed by the High Court on the principle contained in the provisions under O.34 of the Code. The position is different here, since the decree is not passed on a mortgage. Learned counsel for the second respondent then brought my attention to a passage in Chapter-7 of the book "Rowlatt oh the Law of Principal and Surety" (at page 132 in the Fourth edition). In which the learned author has made a reference to some decisions in support of the proposition that a surety also has an enquiry against the creditor in order to prevent the latter from bringing down the whole weight of the debt upon the surety. The relevant portion of the said passage is extracted below: