Balbir Singh and another vs Paramjit Singh and others

Vinod K. Sharma, J. (Oral)

This Execution Second Appeal has been filed against the order passed by the learned Additional District Judge, Amritsar vide which objections

filed by the objector have been accepted.

Learned Executing Court was pleased to dispose of the objections filed against the execution by observing as under :

From the above circumstances, and a perusal of jamabandi for the year 1996 97, it is clear that the suit property mentioned in para No. (a) of

execution application was owned by Teg Singh father of Balwant Singh and after death of Teg Singh, Balwant Singh, Kulwant Singh, Harwant

Singh, Paramjit Singh and Ranjit Singh became owners in equal shares of the inheritance of Teg Singh. Balwant Singh JD No. 1 and Paramjit Singh

JD No. 4 had 2/5 share in this suit property mentioned in Para No. (a) of the execution application but entire property has been ordered to be

attached vide order dated 12.9.2000 while 2/5 share is liable to be attached. Therefore, the objections are accepted partly and 2/5 share of JD

No. 1 and JD No. 4 has been ordered to be attached of land mentioned in Para (a) of the execution application situated in village Marhana, Tehsil

Taran Taran. So for as the sale of land measuring 59 kanals 19 marlas is concerned, the same is also ordered to be attached along with FDR No.

236107/201/90 dated 16.8.1990 in the name of defendant No. 4 mentioned in Para No. C(iii). Objection application disposed of accordingly.

Now to come up on 3.11.2000 for attachment on filing PF.

Paramjit Singh one of the guarantors JD filed an appeal and learned lower Appellate Court by relying upon the judgment in case Union Bank of

India v. Manku Marayana, AIR 1987 SC 1078 was pleased to order that first the decree holder should exhaust remedy of putting mortgaged

property to sale and the Decree Holder should not proceed against the guarantor first. The operative part of the order reads as under:

In these circumstances, I am constrained to concur with the prayer of objector that without first exhausting the remedy of putting mortgaged

properties to sale the DH should not proceed against the guarantor. The appeal is accordingly allowed, partly. The DH bank is directed to first

exhaust the remedy of putting mortgaged property in this case to sale and only thereafter, in the event of decretal amount not being realised from

sale proceeds to put other properties of the objector to sale. However, still, in order to ensure that the objector does not wash of his hands off his

own properties so as to defeat the possible claim of the DH against him and his properties, attachment of his lands and FDR as ordered by the trial

Court will remain in tact but his lands would not be put to sale or FDR would not be put to forfeiture till the sale of mortgaged property. No order

as to costs. File of trial Court be returned for 15.3.2003 on which date the parties have been directed through their counsel to cause their

appearance.

Learned lower appellate Court in coming to this conclusion has relied upon the judgment of Union Bank of India''s case (supra). However, the

said judgment was overruled in State Bank of India v. M/s. Indexport registered and others, AIR 1992 SC 1740. In view of this the order passed

by the learned lower appellate Court cannot be sustained. This appeal is accepted. The impugned part of the order is set aside. The Decree

Holder is at liberty to execute the decree against all or any of the Judgment Debtors.