P GANAPATHY Vs. D PAUL RAJ

JUDGEMENT

(1.) THE respondent herein filed the suit O. S. No. 7 of 1987 for recovery of money against the petitioner and the said suit was decreed. Pursuant to the said decree, the respondent filed an execution petition E. P. No. 19 of 1996 seeking the arrest of the petitioner. THE executing court, by order dated 24. 3. 97 has allowed the application and ordered the arrest. As against this order, the present revision has been filed.

(2.) MR. S. V. Jayaraman, the learned senior counsel contended that the petitioner filed the suit O. S. 19 of 1983 against the respondent herein and obtained a decree for recovery of money. The said decree amount has to be adjusted in this execution petition filed by the respondent and the petitioner is liable to pay only the balance. The lower court is not correct in refusing to adjust the amount and ordering the arrest.

(3.) AT the outset, it has to be considered whether the decree in O. S. No. 19 of 1983 obtained by the respondent is executable at this stage against the petitioner herein. From the above stated facts, it is clear that the joint endorsement in the suit O. S. No. 19 of 1983 is to the effect that the petitioner has to proceed against the first and second defendants therein to recover the decree debt and in case if the decree debt is not recoverable from those defendants, then only the petitioner can proceed against the third defendant. The amendment ordered subsequently in E. A. No. 191 of 1997 also do not change or modify the joint endorsement. The amendment is clear that in case if the petitioner is unable to proceed against the attached properties of the first and second defendants in order to recover the decree debt in O. S. No. 18 of 1983, then he is permitted to proceed against the third defendant therein, the respondent herein to recover the decree debt by way of arrest as well as by way of attachment of his properties. Hence in order to proceed against the third defendant to recover the decree debt in O. S. No. 19 1983, it is the foremost duty of the petitioner to satisfy the court that he is not able to recover the decree debt from the first and second defendants therein and as such he is entitled to proceed against the third defendant, the respondent herein. Then only it can be said that the decree in O. S. No. 19 of 1983 is executable against the respondent herein. Till then, it is not an executable decree so far as the respondent herein is concerned.