Full Judgment Text
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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
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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:-
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"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
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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