Result : Appeal allowed.

ORDER

Special leave granted.

2. The unsuccessful challenge of the appellant before the High Court was to the proposal of respondent No. 1 to the attachment of house No. 191A, Saket, Meerut belonging to him for the realisation of the amounts due to respondent No.1.

3. Briefly stated the facts are that the appellant s son, Rajiv Jain entered into a hire-purchase agreement with respondent No. 1 whereby, the said respondent financed a business venture of his proprietorship concern M/s. S.R.S. Sunfix Company. At the time of signing of the hire-purchase agreement, the appellant herein stood as guarantor as per the deed of guarantee dated 7th June, 1983. The appellant s son then incorporated a private limited company called Shiraj Sunfix Company Private Limited and the said company took over the business of the proprietorship concern. The terms of the original agreement did not permit such a change without the consent of respondent No. 1. The consent to the new entity taking over the business of the proprietorship concern was given by respondent No. 1 and a new agreement was entered into. By virtue of this agreement, the private limited company became the hirer and Rajiv Jain and Ajit Prasad Jain became the first and the second surety respectively. These two persons stood as guarantors under this agreement and they undertook due performance of this agreement and to pay the instalments of hire and insurance etc.

4. The said company failed to make the payments as contemplated by the agreement. Thereupon, respondent No. 1 filed a suit in the Delhi High Court for recovery of Rs. 54,15,001.04 p. with future interest and possession of the machinery and mandatory injunction. While the company through its managing director was arrayed as defendant No. 1, Rajiv Jain and Ajit Prasad Jain were impleaded as defendants Nos. 2 and 3 in their capacity as guarantors. They also happened to be directors of the private limited company. In the plaint, it was stated that respondent No. 1 had agreed to the change from the proprietorship concern to the private limited company and it is thereupon that defendant No.1 and defendant Nos. 2 and 3, being sureties, executed fresh agreement. It is on the basis of this agreement dated 2nd April, 1986 that the suit was filed which was decreed on 12th September, 1996.

5. Respondent No. 1 then forwarded a certificate of recovery under the U.P. Public Moneys (Recovery of Dues) Act, 1972 to the collector, Meerut. The amount for which the decree had been passed was set out in the certificate. The name, of the grantee was mentioned as well as the names and addresses of the guarantors. The appellant, who was not a party to the suit, was not mentioned in the certificate of recovery. The names of the guarantors mentioned in the certificate, being only of Rajiv Jain and Ajit Prasad Jain. It is only in annexure-D which contained the details of the immovable property sought to be attached and sold that the house No. 191A. Saket, Meerut belonging to the appellant was mentioned.

6. It is the inclusion of this immovable property in the recovery certificate which was challenged by the appellant before the High Court. The High Court, however, dismissed the writ petition. Hence, this appeal by special leave.

7. From the facts enumerated hereinabove, it is clear that originally when the hire-purchase agreement had been entered into between the parties in June, 1983, the appellant had stood as one of the guarantors. This agreement, however, was superseded by a new one on 2nd April, 1986. The latter agreement does not say that the earlier agreement of guarantee stood terminated nor does it state that the earlier agreement of guarantee continues. In fact, in the latter agreement of 2nd April, 1986, there is no mention of the earlier agreement entered into by the appellant as a guarantor. The conduct of the parties, however, shows that respondent No. 1 after 2nd April, 1986 did not regard the appellant as one of the guarantors. Apart from the r