PATEL VIMLABEN BHAILALBHAI Vs. MOTAVAR CHHOTABHAI ISHWARBHAI

JUDGEMENT

(1.) This Revision by the judgment creditor arises from execution of a money decree. The suit was decreed in 1974 by compromise. On 3/08/1975 in the course of the execution of the decree three persons stool as sureties for the satisfaction of the decretal amount and bound themselves to pay the amount in case the principal debtor failed to pay the same. This bond was written and executed below the aforesaid Warrant itself. By an order dt. 11.2.80 passed by the Debt Settlement Officer ex. 53 under the Rural Debtors Act the principal debtor was discharged from this debt

(2.) The sureties contended before the Executing Court that in view of the judgment debt of the principal debtor having been wiped off the sureties cannot be proceeded against in execution for recovery of the debt which has been wiped off according to law because their liability is only for the payment of the debt and is co-extensive with that of the debtor.

(3.) The executing court upheld the contention of the sureties following the Full Bench judgment in the case of Aypunni Mani v. Devassy Kochouseph & Ors. AIR 1966 Kerala 203 where the Full Bench had dissented from the judgment of the Nagpur High Court in the case of Balkrishna v. Atmaram AIR 1944 Nag 277. section 128 of the Contract Act enacts that the liability of the surety is co-extensive with that of the principal debtor. Section 145 of the Contract Act provides that as soon as the surety pays the debt to the creditor he subrogates in place of the creditor and becomes entitled to recover the said amount from the principal debtor and the surety is entitled to be reimbursed by the principal debtor. In the present case the principal debtor has been discharged from his liability in accordance with law under the provisions of the Rural Debtors Relief Act and his debt is wiped off Therefore the Principal debtor is neither liable the creditor nor the surety. Therefore stands to reason that the surety is not under liability for the debt which is not existing The executing court therefore dismissed the execution application against the sureties.