LexSTATE BANK OF INDIA versus INDEXPORT REGISTERED AND ORS.
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ST ATE BANK OF INDIA A ~ v. INDEXPORT REGISTERED AND ORS. APRIL 30, 1992 (S. RANGANATHAN, V. RAMASWAMI AND YOGESHW AR B ~ DAYAL, JJ.] Civil Procedure Code, 1908: Order 21, Rules 30, 46, 46A, 468, 46F, 50, 72A and Order 34, Rules 4 c ---- and 5 and Sections 47 and 151-Execution of Composite decree comprising r- 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 guaran- tor without proceeding against the mortgaged property-Wlietlzer guarantor D can be sued without even suing the principal debtor-Guarantor's /iability-Wliether co-atensive with that of principal debtof"-Wl1ether execut- ing. court can go beyond tlze decree-Contract Act, 1872: Section 128. The appellant-Bank had granted a Packing Credit facility to the extent of Rupees one lakh to the Respondent No. 1- Firm, consisting of E 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 F 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 ""-...-41( against him, with permission to the appellant to apply for a personal decree against him for any deficiency after the sale of the morgaged G property. The suit was decreed by the trial court. ,. No appeal was filed by the Respondent No. 4 - Guarantor, and the decree became final. Al 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 H 1031 1032 SUPREME COURT REPORTS (1992) 2 S.C.R. A for proceeding against the guarantor till the mortgaged shop was sold and only if the realisation from tht: sale of the shop was deficient, then the }- B c 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 D 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 E F 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. S of Appendix 'D' to the Code of Civil Procedure. The decree does not postpone the execution. It is simultaneous and is jointly ant'. severally against all the defendants-respondents, including the guarantor. It is the right of the decree-bolder 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 decre~ against the judgment debtor No. 2- Respondent No. G 2. If, on principle, a guarantor could be sued without even suing. the principal-debtor ttlere is no reason, even if the decretal amount is covered by the mortgage decree to force the decree-holder to proceed ag·linst the mortgaged"property first and then to proceed against the guarantor. (1040 H, 1041 A] H 1.3 If the composite f,lecree is a decree
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