289😊Two parts of a CIVIL COURT case? Trial and Execution? Remedy to Plaintiff/Defendant after decree

#courtcase #execution #trial Supreme Court of India State Bank Of India vs Indexport Registered And Ors on 30 April, 1992 Equivalent citations: 1992 AIR 1740, 1992 SCR (2)1031 Author: Y Dayal Bench: Yogeshwar Dayal (J) PETITIONER: STATE BANK OF INDIA Vs. RESPONDENT: INDEXPORT REGISTERED AND ORS. DATE OF JUDGMENT30/04/1992 BENCH: YOGESHWAR DAYAL (J) BENCH: YOGESHWAR DAYAL (J) RANGNATHAN, S. RAMASWAMI, V. (J) II CITATION: 1992 AIR 1740 1992 SCR (2)1031 1992 SCC (3) 159 JT 1992 (4) 273 1992 SCALE (1)1109 ACT: Civil Procedure Code, 1908: Order 21, Rules 30, 46, 46A, 46B, 46F, 50, 72A and Order 34, Rules 4 and 5 and Sections 47 and 151-Execution of Composite decree comprising a money decree personally against all defendants-judgment debtors, and also a mortgage decree against one of the partners in respect of shop mortgaged by him-Whether decree-holder can execute the decree first against the guarantor without proceeding against the mortgaged property-Whether guarantor can be sued without even suing the principal debtor-Guarantor's liability-Whether co-extensive with that of principal debtor-Whether executing court can go beyond the decree- Contract Act, 1872 : Section 128. HEADNOTE: The appellant-Bank had granted a Packing Credit facility to the extent of Rupees one lakh to the Respondent No. 1 - Firm, consisting of Respondent No. 2 and the deceased son of Respondent No. 3. Respondent No. 2 had created an equitable mortgage of his shop as security and Respondent No. 4, father of the deceased partner, had executed a Deed of Guarantee in favour of the appellant- Bank. The appellant-Bank filed a suit against the respondents including Respondent No. 3 who was impleaded in place of her deceased son, for a money decree and also for a preliminary decree against Respondent No. 2, and for a direction that if he committed default, a final decree be passed against him, with permission to the appellant to apply for a personal decree against him for any deficiency after the sale of the mortgaged property. The suit was decreed by the trial court. No appeal was filed by the Respondent No. 4 - Guarantor, and the decree became final. At the time of execution of the decree Respondent No. 4 objected to it on the ground that since no steps were taken against the mortgaged property i.e. shop, no action by way of execution could be taken 1032 for proceeding against the guarantor till the mortgaged shop was sold and only if the realisation from the sale of the shop was deficient, then the balance could be recovered from the judgment-debtors personally. The Additional District Judge held that since it was a composite decree, and the mortgaged property was also involved, the decree-holder should have proceeded first against the mortgaged shop and, since it had not done so, the execution application against the objector (guarantor) did not lie. The appellant-decree-holder challenged this decision before the High Court which also dismissed the revision petition. Hence the appeal by the decree- holder. Allowing the Appeal, this Court, HELD : 1. The decree is a money decree against all the defendants-respondents and a mortgage decree only against defendant-respondent No. 2 so far as the shop is concerned. The decree does not put any fetter on the right of the decree-holder to execute it against any party, whether as a money decree or as a mortgage decree. The execution of the money decree is not made dependent on first applying for execution of the mortgage decree. The choice is left entirely with the decree-holder. There is no preliminary mortgage decree either. It is a final mortgage decree for sale of shop after three months. The decree is not in the prescribed Form No. 5 of Appendix `D' to the Code of Civil Procedure. The decree does not postpone the execution. It is simultaneous and is jointly and severally against all the defendants-respondents, including the guarantor. It is the right of the decree-holder to proceed with it in a way he likes. There is nothing in law which provides a composite decree to be first executed only against the property. [1037 C-E, 1038 E] 1.2 The decree for money is a simple decree against the judgment-debtors, including the guarantor and in no way subject to the execution of the mortgage decree against the judgment debtor No. 2-Respondent No. 2. If, on principle, a guarantor could be sued without even suing the principal- debtor there is no reason, even if the decretal amount is covered by the mortgage decree to force the decree-holder to proceed against the mortgaged property first and then to proceed against the guarantor.