SYNDICATE BANK Vs. PAMIDI SOMAIAH

JUDGEMENT

(1.) The petitioner/decree-holder in the execution petition is the petitioner in the present revision petition. The decree-holder, which is a Nationalised Bank, filed the execution petition against the second judgment-debtor, who is a surety for the recovery of the amount due by the principal debtor.

(2.) The Respondent herein, who was the judgment-debtor filed a counter stating that he was only a surety and not the original borrower and he is not liable to pay the debt and the decree-holder must proceed against the secured properties of the first judgment-debtor. It is also stated that as the suit was abated against the original borrower, the decree passed against the second judgment-debtor is void, illegal and is not executable. It is also contended that the Government of India cancelled the agricultural debts, to the extent of Rs. 10,000/- and as the first judgment-debtor is an agriculturist and the first judgment-debtor borrowed the amount for agricultural purpose, the debt is also deemed to have been discharged. Thereafter, the executing Court framed the point 'Whether the decree obtained against the respondent/second judgment-debtor is executable or not?' The executing Court relying upon a judgment of this Court in the case of Royal Finance Corporation, Gudur v. Venkata Seshayya, 1983 (1) ALT 344, held that as the debt had abated against the principal debtor, the debt against the surety also stands discharged. Therefore, the executing Court dismissed the execution petition. Aggrieved by the said order, the petitioner/decree-holder has come up in the present revision.

(3.) The learned counsel for the petitioner contended that the executing Court is in error in dismissing the execution petition as not executable against the respondent/2nd judgment-debtor. It is contended that as the suit was decreed against the second judgment-debtor, the executing Court cannot go behind the decree and hold that the decree is not executable against the second judgment-debtor. It is contended by the learned counsel that the surety's liability is co-extensive with that of the principal debtor and the suit has been instituted against both of them. The trial Court after considering the merits of the matter passed a decree against the surety. When once a decree has been passed against the surety, the surety is bound by the said decree and the executing Court cannot go into the merits of the said decree.