BASAPPA Vs. MAHARASHTRA STATE FINANCIAL CORPORATION

JUDGEMENT

(1.) THIS revision application under Section 115 of the Civil procedure Code seeks to challenge the impugned order dated April 9, 1987, passed below Exhibit 1 in Regular Darkhast No. 1 of 1983 of the court of District Judge, Osmanabad, seeking to execute the award dated december 16, 1975, in favour of the respondent No 1 Maharashtra State financial Corporation. By the impugned order, the learned Judge relying upon the judgmet of the Kerala High Court in the case of Thressiamma varghese v. K. S. F, Corporation and others reported in AIR 1986 Kerala, 222, granted liberty to the decree holders of the award to proceed against the guarantors or the sureties.

(2.) THE petitioner and the respondent No. 2 are real brothers whereas respondent No. 4 is their mother and respondent No. 3 is their uncle. The respondent No 1 having failed to recover the amount of loan advanced to respondent No. 2, filed an application under the provisions of the financial Corporation Act under Section 31 thereof, being Miscellaneous application No. 27 of 1973 which came to be concluded by the order therein dated December 16, 1975, in favour of the respondent No. 1 the provisions of Section 31 of the State Financial Corporation Act provide that such an award is executable only against the properties of the concerned industrial concern. In the execution proceedings, the petitioner filed an application dated August 7, 1986 (Exhibit 58), relying upon the full Bench decision of the Allahabad High Court in the case of Munnalal gupta v. U. P Financial Corporation and another, reported in AIR 1975 allahabad 416, holding that the property of a surety cannot be a subject matter of the proceedings under Section 31 of the said Act, to contend that OH Jy the properties of the industrial concern are liable to attachment and further consequences thereupon. By an order dated October 2, 1986, on Exhibit 58, the learned District Judge directed proclamation only in relation to the properties of the industrial concern and thereafter the matter was adjourned for compliance in pursuance of the said order.

(3.) LEAVING aside its compliance the respondent No. 1 on October 29, 1986, filed an application relying upon the decision of the Kerala High court as stated hereinabove seeking orders of the executing Court to proceed against the properties of the sureties. As stated above, by the impugned order the said application was granted by the Trial Court, leaving the petitioner to approach this court by way of this application.