GUR SAHIB SINGH Vs. PUNJAB AND SIND BANK

JUDGEMENT

(1.) THIS, revision petition is directed against the order of the executing court dated January 11, 1990, whereby execution was proceeded with against the mortgaged property of the guarantor.

(2.) AT the time of the motion hearing, reliance was placed on Union Bank of India v. Manku Narayana [1987] 62 Comp Cas 1 ; AIR 1987 SC 1078, for the proposition that, first of all, the mortgaged property of the principal judgment-debtor be sold and then execution should proceed against other property.

(3.) IT has been stated on behalf of the respondent-department that, in the decree itself, there is a direction that the decree-holder can proceed against the properties of all the defendants including the guarantor. Apart from the above, in Manku Narayana's case, AIR 1987 SC 1078 ; [1987] 62 Comp Cas 1, it was not held by the Supreme Court that the decree-holder had to proceed first against the mortgaged property of the principal debtor and then only against the guarantor. What was held therein by the Supreme Court was that where the decree in execution is a composite decree personally against the principal debtor and the guarantor and also against the mortgaged property and a portion of the decretal amount is covered by the mortgage, the decree-holder-bank has to proceed against the mortgaged property first and then proceed against the guarantor personally. Thus, it was nowhere held that the property mortgaged by the guarantor cannot be proceeded against in the first instance. Reference in this behalf may also be made to State Bank of India v. Saksaria Sugar Mills Ltd. [19861 54 Comp Cas 861 ; AIR 1986 SC 868 and Bank of Bihar Ltd. v. Damodar Prasad [1969] 39 Comp Cas 133 ; [1969] 1 SCR 620, wherein it has been held that the liability of the guarantor is co-extensive with that of the principal debtor and the decree-holder can proceed against the mortgaged property of either of them.