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TMI Blog2008 (11) TMI 738X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and 7 remained ex parte. Therefore, the petitioner alone contested the matter. Through its order, dated 22.10.2007, the executing Court came to the conclusion that though the petitioner is possessed of sufficient means to pay the decretal amount, he did not honour the decree and accordingly, directed his arrest. This Civil Revision Petition is filed against the order in E.P. No. 129 of 2004. 3. Learned counsel for the petitioner submits that there was absolutely no basis for the 1st respondent in choosing to proceed only against three judgment debtors that too selectively against the petitioner alone, leaving aside the principal debtor and the other sureties. He contends that the liability of the sureties is co-extensive with that of the principal debtor and unless steps are taken against the principal debtor also, it would become untenable for the executing Court to enforce the decree. He further contends that even otherwise, the liability of a surety is proportionate and there is no legal basis for placing the entire burden upon the petitioner alone. He has relied upon certain precedents. 4. Learned counsel for the 1st respondent, on the other hand, submits that being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal-debtor, or the surety. However, once the judgment-debtor has chosen to proceed against any of them, and realized the decretal amount to certain extent, it is difficult to concede to him, the freedom to proceed against the other, halfway through. It is only after he exhausts his remedies, vis--vis a party, against whom he initiated proceedings, and the decree still remains unsatisfied, that he can proceed against the other party. Otherwise, the freedom accorded to the decree-holder is prone to be misused and the judgment-debtors are likely to be harassed and subjected to hardship. It is always open to a decree-holder to proceed against the remaining judgment-debtors, if the steps taken by him and carried to their end, against one of the judgment-debtors have failed to result in full satisfaction of the decree. He cannot have the pleasure or luxury of proceeding partly against one judgment-debtor and partly against other, without carrying the execution proceedings, till the legal or logical end. Otherwise, the object of the execution proceedings ceases to be the one to realize the decretal amount and tends to become the one to harass the judgment-debtors. A doubt as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .G. Brothers Finance Ltd.'s case (supra): 43. Any one of joint promisors may be compelled to perform.-When two or more persons make a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise. Each promisor may compel contribution Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract. Sharing of loss by default in contribution If any one of two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares. Explanation.-Nothing in this section shall prevent a surety from recovering from his principal, payments made by the surety on behalf of the principal, or entitle the principal to recover anything from the surety on account of payments made by the principal. 44. Effect of release of one joint promisor.-Where two or more persons have made a joint promise, a release of one of such joint promisors by the promisee, does not di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the acts or omissions of the creditor, would relieve the surety from his obligation (Section 134). Another instance is, where the creditor compounds with, or gives time to, or agrees not to sue the principal debtor. The relevant provision reads as under: 135. Discharge of surety when creditor compounds with, gives time to, or agrees not to sue, principal debtor A contract between the creditor and the principal debtor, by which the creditor makes a composition with, or promises to give time to, or not to sue, the principal debtor, discharges the surety, unless the surety assents to such contract. 10. If any of the eventualities mentioned above take place, the sureties stand discharged. As is the case with any other form of contract, the one between the principal debtor and surety can either be express or implied. Exceptions to the principles underlying Section 135 are contained in Sections 136 and 137, which are extracted hereunder: 136. Surety not discharged when agreement made with third person to give time to principal debtor:-where a contract to give time to the principal debtor is made by the creditor with a third person, and not with the principal debtor, the suret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flow, as between the principal debtor and the surety. Discharge by one would discharge the other. Any transaction or deal between the creditor and the principal debtor, without the knowledge of the surety, to alter the terms of contract, or the circumstances mentioned in the provisions, such as Section 135 of the Act, would have the effect of completely relieving the surety. The attention of this Court does not appear to have been drawn to this radical difference, when it decided M.G. Brothers Finance Ltd.'s case (supra). 15. Here itself, it is relevant to make a mention about the distinction between 'indemnity', on the one hand, and 'guarantee' on the other. The liability of a surety fits into the one of a guarantor. By its very nature, indemnity is larger in scope and some times, the liability of an indemnifier would outlive that of the principal debtor. Liability under a guarantee on the other hand is coextensive with that of the principal. The acclaimed author of Law of Contracts; Chitty observed in his treatise as under: In contracts of guarantee there is a strong prima facie rule of construction that the surety's obligations are coextensive with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three sureties, though he mentioned their names in the cause title in the E.P. Across the Bar, it is represented on behalf of the first respondent that steps were not initiated against the principal debtor, on account of the fact that she was declared as insolvent under the Provisions of the Provincial Insolvency Act. If the 1st respondent felt that it suffers legal disability, from proceeding against the principal debtor, by that very reason, he suffers incapacity vis- -vis. others also, by operation of the principle underlying Section 128 of the Act. 19. It has already been pointed out that Section 135 of the Act brings about discharge of surety, in case the creditor had an arrangement with the principal debtor. Such arrangement can be in the form of a composition or promise to give time, or not to sue the principal debtor. Contracts of this nature can either be express or implied. The record discloses that the 1st respondent had received certain instalments from the 2nd respondent, after the decree was passed. A sum of ₹ 5,000/- was received on 30.08.2003 and ₹ 3,000/- on 23.03.2004. On both the occasions, sums of ₹ 376/- and 124/- respectively were collecte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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