Kathirvel vs Nachimuthu

Honourable Mr. Justice G. Rajasuria

Inveighing the order dated 3.2.2010 passed by the District Munsif Court, Kangayam in E.P. No. 70 of 2008 in O.S. No. 126 of 2005, this civil

revision petition is focused. Despite printing the name of the respondent, there is no appearance.

The germane facts as stood uncontained in this matter could be encapsulated thus:

(i) The revision petitioner filed the E.P. as decree holder for recovery of money under the money decree, which he obtained.

(ii) The respondent herein/judgment debtor entered appearance and contested the E.P. on the ground that during the pendency of the suit itself,

attachment before judgement was effected relating to his property and without proceeding as against the saud property for sale for recovering the

decreetal amount, the revision petitioner/decree holder had chosen to seek for arrest.

(iii) The plea of the judgment debtor found fair with the lower Court and it ultimately dismissed the E.P., over which this revision has been filed on

various grounds.

The point for consideration is as to whether the revision petitioner/decree holder is bound to proceed to bring the property for sale in view of the

attachment before judgment which he got effected in respect of the property of the judgement debtor, pendent lite.

The learned counsel for the petitioner appropriately and appositely cited the following decisions of the Honorable Apex Court as well as this

Court:

(i) State Bank of India Vs. Messrs. Indexport Registered and others, an excerpt from it would run thus:

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 guarantors. 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.

(ii) 2006 (3) CTC 546 Ganesh v. Sankaran and another, certain excerpts from it would run thus:

In State Bank of India Vs. Messrs. Indexport Registered and others, , the Hon''ble Supreme Court has held that ""Moreover, it is the right of

decree holder to proceed with it in a way he likes"".

These decisions would show that the decree holder has got right to choose the mode of execution. Our Hon''ble Supreme Court pointed that

the decree holder is at liberty to choose any mode of relief. In view of the decision of the Hon''ble Supreme Court, I am of the considered view

that the decree holder cannot be compelled to choose a particular mode of execution. So the decree holder is at liberty to file this Execution

Petition.

A mere poring over and perusal of the above precedents would amply make the point clear that the judgement debtor, who committed default in

discharging the decree, cannot dictate terms to the decree holder as to what procedure he has to resort to in the process of recovering the decree

debt.

No doubt attachment before judgment was effected in respect of the property of the judgment debtor, at the instance of the decree holder and

that it does not mean that the decree holder should only proceed as against the property and not against the person.

The lower Court referred to an unreported judgment, but absolutely there is no knowing of the details about it. However, the two precedents

cited supra on the side of the revision petitioner/decree holder would exemplify and demonstrate that the view of the trial Court in dismissing the

E.P. was untenable. The only requirement is that the decree holder is bound to prove that after the passing of the decree, the judgment debtor had

enough means to discharge the decretal dues and despite that he did not do so. Instead of probing into the means of judgment debtor, the trial

Court misdirected itself and simply accepted the plea of the judgment debtor and dismissed the E.P. itself.

No doubt, in view of the attachment before judgment, the judgment debtor might not be in a position to sell his property and raise money and

pay the decretal dues. There is nothing to indicate that the judgment debtor intended to sell his property and raise money and discharge the

decretal dues and there is also nothing to show that he made any prayer to the Court in that regard for selling his property and raise money and

discharge his debt. Hence, in these circumstances, as of now, I am of the considered view that the lower Court was wrong in dismissing the E.P.

Accordingly, the order of the lower Court is set aside and the E.P. shall stand restored to file and accordingly be processed as per law, as referred

to supra. In the result, the civil revision petition stands allowed. However, there is no order as to costs.