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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

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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.

[1040 H, 1041 A]

1.3 If the composite decree is a decree which is both a

personal

1033

decree as well as a mortgage decree, without any limitation

on its execution, the decree-holder, in principle, cannot be

forced to first exhaust the remedy by way of execution of

the mortgage decree alone and told that only if the amount

recovered is insufficient, he can be permitted to take

recourse to the execution of the personal decree. For a

simple mortgage decree as prescribed in Form No. 5 of

Appendix `D' of the Code of Civil Procedure it could be so

because the decree provides like that. It is only when the

sum realised on sale of the mortgaged property is

insufficient then the judgment-debtor can be proceeded with

personally. [1041 C-D]

Union Bank of India v. Manku Narayana, AIR 1987 SC

1078, differed.

Bank of Bihar Ltd. v. Damodar Prasad & Anr., [1989] 1

SCR 620, relied on.

The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda

JUDGMENT:

v. Shivnarayan Bhagirath & Ors., AIR 1940 Bombay, 247 and

Muthuvelappa Goundan & Anr. v. Palaniapa Chettiar & Ors.

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1937 Madras Weekly Reports 373, approved.

Raja Raghunandan Prasad Singh & Anr. v. Raja Kirtyanand

Singh Bahadur, AIR 1932 P.C. 131, distinguished.

Pollock & Mulla on Indian Contract and Specific Relief

Act, Tenth Edition. p 728; Chitty on Contracts 24th Edition

Volume 2, p. 1031, paragraph 4831 & Halsbury's Laws of

England Fourth Edition paragraph 159 p. 87, referred to.

In the instant case, the guarantor never took any plea

in the suit to the effect that his liability is only

contingent if remedies against the principal debtors fail to

satisfy the dues of the decree-holder. If such a plea had

been taken and the court trying the suit had considered the

plea and gave and finding in favour of the guarantor, then

it would have been a different position. But on the face of

the decree, which has become final, the court cannot

construe it otherwise than its tenor. No executing court can

go beyond the decree. All such pleas as to the rights which

the guarantor had, had to be taken during trial and not

after the decree while execution is being levied. [1042 G,

1043 A]

1.5 The orders of the High Court and of the Additional

District Judge

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are set aside. The decree-holder is entitled to proceed

against the guarantor (judgment-debtor No. 4) for the

execution of the decree in question. [1043 B]

&

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1888 of

1992.

From the Judgment and Order dated 23.5.1990 of the

Delhi High Court in Civil Revision No. 587 of 1989.

G. Ramaswamy, Harish N. Salve, Rajiv Kapur and R.P.

Kapur for the Appellants.

J.C. Batra, Vijay Kumar, H. Chawla, S. Prasad and Ms.

Sangeeta Aggarwal for the Respondents

The Judgment of the Court was delivered by

YOGESHWAR DAYAL, J. Special leave granted.

This appeal is directed against the judgment of the

High Court of Delhi dated 23rd April, 1990 whereby the High

Court was pleased to dismiss the revision petition filed by

the appellant-Bank against the judgment of the Additional

District Judge, Delhi dated 5th May, 1989 whereby the

Additional District Judge, Delhi, relying upon the decision

of this Court in Union Bank of India v. Manku Narayana, AIR

1987 SC 1078, dismissed the Execution Application No. 39 of

1985 against respondent No 4 (judgment debtor-Guarantor).

The question involved in the appeal really is whether

the said decision is correct. In Manku Narayana's case

(supra) this Court took the view that:

"The decree in execution is a composite decree,

personally against the defendants including the

respondent and also against the mortgaged property.

We do not pause to consider whether the two

portions of the decree are severable or not. We

are of the view that since a portion of the decreed

amount is covered by the mortgage, the decree-

holder Bank has to proceed against the mortgaged

property first and then proceed against the

guarantor. Since the High court was not told that

such steps were taken, we do not think we will be

justified in

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holding that the High Court was in error in making

the direction which is under challenge before us."

Before we go into the question of the correctness or

otherwise of the aforesaid decision a few facts of the

present case may be noticed.

The appellant, one of the Nationalised Banks, is a

decree-holder. M/s. Indexport Registered, respondent no. 1,

is a partner firm. Shri Janeshwar Kumar Jain, respondent

No. 2, was a partner of respondent No. 1 along with one Shri

Ajay Kishan Mehta (since deceased and now represented by his

mother Smt. Savitiri Devi, respondent No. 3). Shri Ram

Kishan, respondent No. 4, is a guarantor.

The appellant-Bank had granted to respondent No. 1 a

Packing Credit Facility to the extent of Rs. 1,00,000 and

respondent No. 4 had executed a Deed of Guarantee in favour

of the appellant-Bank. Shri Ajay Kishan Mehta, having died

prior to the filing of the suit, Smt. Savitiri Devi, was

impleaded in place of her deceased son as his legal

representative. As a security, respondent No. 2, had also

created an equitable mortgage of his shop situated in Rori

Bazar, Sirsa, Haryana, in favour of the appellant.

The appellant was obliged to file a suit against the

respondents for a money decree for Rs. 33,705.22. The

appellant also prayed for a preliminary decree against the

respondent No. 2 with a direction that if he commits a

default in payments, 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 contested by the

respondents. In paragraph 12 of its judgment, while

deciding issue No. 7 relating to the relief, the learned

trial court observed as under:-

"12. In view of my findings recorded above, the

present suit succeeds and decreeing the same, i

hereby pass a decree in favour of the plaintiff for

recovery of Rs. 33,705.22p. with costs. The

defendants shall pay future interest at the rate of

7% per annum (as agreed in the letter Ex. PAPW 5/4)

from the date of the institution of the suit till

its realisation. The plaintiff Bank shall also be

entitled to the amount by way of sale of the shop

in case the decretal amount is not paid within a

period of three

1036

months from today, decree in question will also be

deemed to be a personal decree against all the

defendants, but, however, decree will be executable

against defendant No. 3 qua the estate inherited by

her from Ajay Kishan Mehta. Decree-sheet be

prepared and the file be consigned to the record

room."

On an application of the appellant-Bank the execution

of the decree was transferred to Delhi and on notice being

issued by the Court of the Additional District Judge, Delhi

guarantor-respondent No. 4 filed objections. The main

objection was that no steps were taken against the mortgaged

property i.e. shop and no action by way of execution could

be taken for proceeding against the guarantor till the

mortgaged shop is sold and it is only if the realisation

from the sale of the shop is deficient that the balance

could be recovered from the judgment debtors personally.

The Additional District Judge, Delhi, following the

decision of this Court in Manku Narayana's case (supra) took

the view that it is a composite decree, personally against

the principal debtor and the guarantor and also against the

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mortgaged property of defendent No. 2, and therefore, since

it is a composite decree and the mortgaged property is also

involved, the decree-holder should have proceeded first

against the mortgaged shop and since it has not done so, the

execution application against the objector (guarantor) does

not lie. The decree-holder challenged this decision dated

5.5.1989 by way of a revision petition before the High Court

and the High Court also, following the decision of this

Court in Manku Narayana's case (supra), dismissed the

revision petition and it is against this decision that the

present appeal arises.

It will be noticed that the loan was taken by the firm,

namely, respondent No. 1, which consisted of Sh. Dhaneshwar

Kumar Jain, respondent No. 2 (defendant No.2) and Sh. Ajay

Kishan Mehta (since deceased). The respondent No. 2

(defendent No. 2) had created an equitable mortgage of his

shop and respondent No.4, who is a father of late Sh. Ajay

Kishan Mehta stood guarantor for the loan to respondent No.

1. The very wordings of the decree quoted above shows that

it is a personal decree against all the defendants/judgment-

debtors. Respondent No. 4 was defendant No. 4, so it is a

money decree against defendant No. 4 as well. It is also a

mortgage decree against the mortgagor, namely-defendant No.

2

1037

only. The decree specifically mentions that a money decree

is being passed for recovery of Rs. 33,705.22 with costs and

the defendants shall pay interest @ 7% per annum from the

date of the institution of the suit till its realisation.

There is also a decree passed in favour of the Bank

entitling it to sell the shop in case decretal amount is not

paid within three months from the date of the decree and the

decree specifically mentions that it will be deemed to be a

personal decree against all the defendants (respondents).

Only qua defendant No. 3 it can be executed only to the

extent the mother inherited the estate of her son Shri Ajay

Kishan Mehta. It is thus clear from the decree that it is a

money decree against all the defendants (respondents) and a

mortgage decree only against defendent No. 2 (respondent No.

2) so far as the shop in 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. The question arises whether a decree which

is framed as a composite decree, as a matter of law, must be

executed against the mortgage property first or can a money

decree, which covers whole or part of decretal amount

covering mortgage decree can be executed earlier. There is

nothing in law which provides such a composite decree to be

first executed only against the property. It will be

noticed that 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.

In Bank of Bihar Ltd. v. Damodar Prasad and another,

[1969] 1 SCR 620 the facts were that the plaintiff Bank lent

money to Damodar Prasad, defendant No. 1, on the guarantee

of Paras Nath Sinha, defendant No. 2. On the date of the

suit Damodar Prasad was indebted to the Bank for Rs.

11,723.56 on account of principal and Rs. 2,769.37 on

account of interest. In spite of demands neither the

principal debtor nor the guarantor paid the dues. The

plaintiff Bank then filed a suit claiming a decree for the

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amount due. The trial court decreed the suit against both

the defendants but while passing the decree the trial court

directed that the plaintiff Bank shall be at liberty to

enforce its dues against defendant No. 2 only after having

exhausted its remedies against defendant No. 1. The

plaintiff went in appeal challenging the legality and

propriety of this direction. The High

1038

Court dismissed the appeal, whereupon on certificate, the

matter came before this Court. Bachawat, J. speaking for

the Court held that the direction must be set aside. It was

observed that:

"It is the duty of the surety to pay the decretal

amount. On such payment he will be subrogated to

the rights of the creditor under Section 140 of the

Indian Contract Act, and he may then recover the

amount from the principal. The very object of the

guarantee is defeated if the creditor is asked to

postpone his remedies against the surety. In the

present case the creditor is banking company. A

guarantee is a collateral security usually taken by

a banker. The security will become useless if his

rights against the surety can be so easily cut

down."

The Court further held that such directions are neither

justified under Order XX rule 11(1) or under the inherent

powers of the Court under Section 151 of the code of Civil

Procedure to direct postponement of the execution of the

decree.

In the present case before us the decree does not

postpone the execution. The decree is simultaneous and it

is jointly and severally against all the defendants

including the guarantor. It is the right of the decree-

holder to proceed with it in a way he likes. Section 128 of

the Indian Contract Act itself provides that "the liability

of the surety is co-extensive with that of the principal

debtor, unless it is otherwise provided by the contract".

In Pollock & Mulla on Indian Contract and Specific

Relief Act, Tenth Edition, at page 728 it is observed thus :

"Co-extensive-Surety's liability is co-extensive

with that of the principal debtor.

A surety's liability to pay the debt is not removed

by reason of the creditor's ommission to sue the

principal debtor. The creditor is not bound to

exhaust his remedy against the principal before

suing the surety, and a suit may be maintained

against the surety though the principal has not

been sued."

In Chitty on Contracts 24th Edition Volume 2 at page

1031 paragraph 4831 it is stated as under:-

1039

"Prima facie the surety may be proceeded against

without demand against him, and without first

proceeding against the principal debtor."

In Halsbury's Laws of England Forth Edition paragraph

159 at page 87 it has been observed that "it is not

necessary for the creditor, before proceeding against the

surety, to request the principal debtor to pay, or to sue

him, although solvent, unless this is expressly stipulated

for."

In The Hukumchand Insurance Co. Ltd. v. The Bank of

Baroda and others, AIR [1977] Karnataka 204, a Division

Bench of the High Court of Karnataka had an occasion to

consider the question of liability of the surety vis-a-vis

the principal debtor. Venkatachaliah, J. (as His Lordship

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then was) observed:-

"The question as to the liability of the surety,

its extent and the manner of its enforcement have

to be decided on first principles as to the nature

and incidents of suretyship. The liability of a

principal debtor and the liability of a surety

which is co-extensive with that of the former are

really separate liabilities, although arising out

of the same transaction. Notwithstanding the fact

that they may stem from the same transaction, the

two liabilities are distinct. The liability of the

surety does not also, in all cases, arise

simultaneously."

It will be noticed that the guarantor alone could have

been sued, without even suing the principal debtor, so long

as the creditor satisfies the court that the principal

debtor is in default.

In Jagannath Ganeshram Agarwala v. Shivnarayan

Bhagirath and others, AIR [1940] Bombay 247, a Division

Bench of the Bombay High Court (Kania and Wassoodew JJ.)

held that the liability of the surety is co-extensive, but

is not in the alternative. Both the principal debtor and

the surety are liable at the same time to the creditors.

In Muthuvelappa Goundan and another v. Palaniapa

Chettiar and other [1937] Madras Weekly Reports 373, the

facts were that the plaint combined two claims, one against

defendants 1 to 3 and their children on the basis of a

promissory note Ex. A executed by defendants 1 to 3 and

1040

One Kasiappa, deceased, on 29th August, 1931 and the other a

claim against Kasiappa's sons (defendants 4 and 5) not

merely on the promissory note but also on a security bond

Ex. B executed by Kasiappa on 17th April, 1932 in respect

of the amount due under Ex. A. The suit was decreed. An

appeal was filed by defendants 1 to 3 against certain

directions contained in the decree of the lower court as to

manner in which the decree is to be executed. The

Subordinate Judge had to consider the contention put forward

on behalf of Kasiappa's sons that the properties covered by

Ex. B should be sold only after the plaintiff had exhausted

his remedies against defendants 1 to 3 and their family

properties. The defendants 1 to 3 contended to the

contrary. The trial court directed that the plaintiff

should bring the secured properties to sale after exhausting

the personal remedy against the defendants, meaning the

remedy personally against defendants 1 to 3, and also the

remedy against the family property of all the defendants.

The appeal was filed by defendants 1 to 3 before the High

court. It was contended on behalf of the appellants that

the lower court should have directed the plaintiff to

proceed in the first instance against the security

properties and only after they had been sold should the

plaintiff have been permitted to proceed against the

appellants personally. This contention was sought to be

supported before the High Court by the analogy of a decree

to be passed in mortgage suits. It was pleaded that

provisions of Section 68 of the Transfer of Property Act

should be applied as the remedy in respect of charge is

governed by it. It was also urged on behalf of the

appellants that on the true construction of Section 68, the

course contended for by him would be the proper course.

This contention of the appellants was negatived by the High

Court. The High Court observed that this can apply only as

between the mortgagor and the mortgagee and the appellants

had nothing whatever to do with the security bond. The

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relationship of the appellants was not of the mortgagor at

all, and, therefore, Section 68 could not be invoked.

It will be noticed that in present case no appeal was

filed by the gurantor against the passing of the decree and

the decree has become final.

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. If on principle a

1041

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. It appears the above quoted

observations in Manku Narayana's case (supra) are not based

on any established principle of law and/or reasons, and in

fact, are contrary to law. It, of course depends on the

facts of each case how the composite decree is drawn up.

But if the composite decree is a decree which is both a

personal decree as well as a mortgage decree, without any

limitation on its execution, the decree-holder, in

principle, cannot be forced to first exhaust the remedy by

way of execution of the mortgage decree alone and told that

only if the amount recovered is insufficient, he can be

permitted to take recourse to the execution of the personal

decree. For a simple mortgage decree as prescribed in Form

No. 5 of Appendix D of the Code of Civil Procedure it could

be so because the decree provides like that. It is only

when the sum realised on sale of the mortgaged property is

insufficient then the judgment-debtor can be proceeded with

personally. But the observations of the court in Manku

Narayana's case (supra) that even if the two portions of the

decree are severable and merely because a portion of the

decretal amount is covered by the mortgage decree, the

decree-holder per force has to proceed against the mortgaged

property first are not based on any principle of law. With

all due respect to the learned Judge, in the light of the

observations made by us earlier, we are constrained to

observe that Manku Narayana's case (supra) was not correctly

decided.

Mr. Batra on behalf of the respondent/guarantor

submitted that since the plaintiff/decree-holder chose to

file the suit at Sirsa only with a view that the mortgage

property is situated there, he should, therefore, take

recourse to the execution of the mortgage decree alone in

the first instance. It will be noticed that we are dealing

with the matter at the execution stage and are not concerned

with the correctness or otherwise of the decree under

execution. Therefore, this submission of the learned

counsel has got no basis. Learned counsel for the guarantor

then brought to our notice the following decisions:-

Raja Raghunandan Prasad Singh and another v. Raja

Kirtyanand Singh Bahadur, AIR [1932] P.C. 131. This case has

not applicable to the

1042

present case as it dealt with the construction of the surety

bond furnished during appeal in a decree passed in a mortgage

suit.

State of Madhya Pradesh v. Kaluram, AIR [1967] SC 1105.

This again has no relevance as it relates to the question

when the security gets discharged.

The Bank of Bihar v. The State of Bihar and others,

AIR [1971] SC 1210. This was a case of pledge of the goods

and, therefore, has no relevance to the facts of present

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case.

Look Karan Sethia etc. v. Ivan E. John and others etc.,

[1977] 1 SCR 853 at 871. This again was a case relating to

dissolution of partnership and for rendition of accounts.

The State Bank of Saurashtra v. Chitranjan Rangnath

Raja and another, AIR [1980] SC 1528. It will be noticed

that in this case plea was taken in the suit and the matter

was not relating to the execution of the decree.

State Bank of India v. M/s. Saksaria Sugar Mills Ltd.

and others, AIR [1986] SC 868. In this case even when the

sugar Mills were taken over it was held that the Bank's

rights as secured creditors and their remedies are not

affected.

Deep Chand v. Punjab National Bank and another, 1

[1990] BC 50. This case again is relating to the

interpretation of the decree and has no relevance to the

facts of the present case.

Kumar Sudhendu Narain Deb v. Renuka Biswas (Mrs.) and

others. This again has no application to the question posed

before us.

The guarantor in the present suit never took any plea

to the effect that his liability is only contingent if

remedies against the principle debtor fail to satisfy the

dues of the decree-holder. If such a plea had been taken

and the court trying the suit had considered the plea and

gave any finding in favour of the guarantor, then it would

have been a different position. But in the present case, on

the face of the decree, which has become final, the court

cannot construe it otherwise than its tenor. No. executing

court can go beyond the decree. All such pleas as to the

rights which the

1043

guarantor had, had to be taken during trial and not after

the decree while execution is being levied.

The result is that the appeal is allowed and the

impugned orders of the High Court dated 23rd May, 1990 and

of the learned Additional District Judge dated 5th May, 1989

are set aside and it is held that the decree-holder is

entitled to proceed against the guarantor (judgment debtor

No. 4) for the execution of the aforesaid decree.)

It appears that in pursuance of the orders of this

Court dated 19th February, 1990 respondent No. 4 has

furnished a bank guarantee in favour of the appellant-bank

to the extent of Rs. 70,000. In view of the result of the

appeal, the decree-holder bank will be entitled to proceed

against judgment-debtor No. 4 to the extent of the decretal

amount recoverable from the bank guarantee furnished by him

and also to proceed in execution in accordance with law for

the balance amount, if any.

N.P.V. Appeal Allowed.

1