2016 (4) TMI 1407 - HC - Indian Laws

Simultaneous execution petitions - validity of filing two execution petitions for realizing or recovering the decretal amount due from two judgment debtors which relates to same transaction - HELD THAT - Under Order 21 Rule 11 CPC a decree holder would be entitled to proceed simultaneously against the different judgment debtors in execution of his decree as already discussed herein above. There is nothing in the Code of Civil Procedure or in any other law which lays down positively that several applications for execution of a decree cannot be filed simultaneously. The rules of procedure are hand made of justice. Order 21 Rule 11 (2)(e) CPC mandates that the decree holder has to indicate in the execution petition as to whether any and (if any) what payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree and not the amount for which the decree holder has filed any other execution petition which is pending. However under Order 21 Rule 2(f) CPC the decree holder has to state whether any and (if any) what previous applications have been made for the execution of the decree the dates of such applications and the results Thus it would indicate that Order 21 Rule 11 CPC does not bar simultaneous executions. However in case of two execution petitions being filed namely (1) for arrest of judgment debtor and other execution petition is filed to proceed against the property of same judgment debtor then in such a situation Executing Court may refuse execution against the person and property of said judgment debtor at the same time as indicated in Order 21 Rule 30 CPC. A decree holder would be entitled to file two execution petitions for realizing or recovering the decretal amount due from two judgment debtors when judgment and decree passed against them is joint and several. Simultaneous execution petitions having been filed by decree holder for realization of amounts due from the Judgment debtors which decree is joint and several executing Court was not justified in dismissing the execution petitions - Petition allowed.

Summary

Issues Involved:
1. Maintainability of simultaneous execution petitions against principal borrower and guarantor.
2. Directive to amend execution petitions to avoid exceeding the decretal amount.
3. Applicability of legal precedents and principles of natural justice.
4. Supervisory jurisdiction under Article 227 of the Constitution of India.

Detailed Analysis:

1. Maintainability of Simultaneous Execution Petitions:
The primary issue was whether the decree holder can file simultaneous execution petitions against both the principal borrower and the guarantor for the same decretal amount. The court held that under Order 21 Rules 11, 21, and 30 of the Code of Civil Procedure (CPC), a decree holder is entitled to proceed against different judgment debtors simultaneously. The court referenced the Division Bench of Andhra Pradesh High Court in *Bethia Venkanna v. Sait Chunilal Moolchand Registered Firm, Kakinada*, which affirmed that simultaneous execution petitions are permissible and do not require specific permission from the court. The court emphasized that the decree holder must disclose any amounts recovered to prevent unjust enrichment.

2. Directive to Amend Execution Petitions:
The Executing Court had directed the decree holder to amend the execution petitions to ensure that the total claim does not exceed the decretal amount. The High Court found this directive impermissible, stating that such an amendment would effectively halve the claim, contrary to the law. The court accepted the undertaking from the decree holder's counsel that any amounts realized from either judgment debtor would be disclosed and deducted from the total claim, thereby ensuring transparency and preventing double recovery.

3. Applicability of Legal Precedents and Principles of Natural Justice:
The decree holder argued that the Executing Court erroneously applied the judgment in *S.P Chengalvaraya Naidu v. Jagannath*, which was not relevant to the facts of the case. The court agreed, noting that the liability of the guarantor is co-extensive with that of the principal debtor, and both can be pursued simultaneously. The court also referenced the Division Bench judgment in *The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda*, which supports the view that the liabilities of the principal debtor and the guarantor, although arising from the same transaction, are distinct and can be enforced independently.

4. Supervisory Jurisdiction under Article 227:
The court reiterated that under Article 227 of the Constitution, it has the power to supervise and correct errors in the jurisdiction exercised by subordinate courts. The court found that the Executing Court had erred in its interpretation of the law and its directive to amend the execution petitions. The court emphasized that the rules of procedure are meant to aid justice and should not be interpreted in a manner that causes injustice or failure of justice.

Conclusion:
The High Court set aside the impugned orders directing the amendment of execution petitions and held that simultaneous execution petitions against the principal borrower and guarantor are maintainable. The court allowed the writ petitions, thereby permitting the decree holder to proceed with the execution petitions as filed. The decree holder was directed to file an affidavit of undertaking to disclose any amounts realized from either judgment debtor during the execution proceedings.

Final Orders:
1. Writ petitions allowed.
2. Impugned orders directing amendment of execution petitions set aside.
3. Simultaneous execution petitions against principal borrower and guarantor held maintainable.
4. Decree holder directed to file an affidavit of undertaking to disclose amounts realized from judgment debtors.