JUDGMENT

YOGESHWAR DAYAL, J.:- Special leave granted.

2. This appeal is directed against the judgment of the High Court of Delhi dated 23rd April, 1990 whereby the High Court was pleased to dismiss the revision petition filed by the appellant-Bank against the judgment of the Additional District Judge Delhi dated 5th May, 1989 whereby the Additional District Judge, Delhi, relying upon the decision of this Court in Union Bank of India v. Manku Narayana, AIR 1987 SC 1078, dismissed the Execution Application No. 39 of 1985 against respondent No. 4 (Judgment debtor-Guarantor).

3. The question involved in the appeal really is whether the said decision is correct. In Manku Narayanas case, (AIR 1987 SC 1078), Para 4 (supra) this Court took the view that:

"The decree in execution is a composite decree, personally against the defendants including the respondent and also against the mortgaged property. We do not pause to consider whether the two portions of the decree are severable or not. We are of the view that since a portion of the decreed amount is covered by the mortgage, the decree-holder Bank has to proceed against the mortgaged property first and then proceed against the guarantor. Since the High Court was not told that such steps were taken, we do not think we will be justified in holding that the High Court was in error in making the direction which is under challenge before us."

4. Before we go into the question of the correctness or otherwise of the aforesaid decision a few facts of the present case may be noticed.

5. The appellant, one of the Nationalised Banks, is a decree-holder. M/ s. Indexport Registered, respondent No. 1, is a partner firm. Shri Janeshwar Kumar Jain, respondent No. 2, was a partner of respondent No. 1 along with one Shri Ajay Kishan Mehta (since deceased and now represented by his mother Smt. Savitiri Devi, respondent No. 3). Shri Ram Kishan, respondent No. 4, is a guarantor.

6. The appellant-Bank had granted to respondent No. 1 a Packing Credit Facility to the extent of Rs. 1,00,000/-and respondent No. 4 had executed a Deed of Guarantee in favour of the appellant-Bank. Shri Ajay Kishan Mehta, having died prior to the filing of the suit, Smt. Savitiri Devi, was impleaded in place of her deceased son as his legal representative. As a security, respondent No. 2, had also created an equitable mortgage of his shop situated in Rori Bazar, Sirsa, Haryana, in favour of the appellant.

7. The appellant was obliged to file a suit against the respondents for a money decree for Rs. 33,705/22. The appellant also prayed for a preliminary decree against the respondent No. 2 with a direction that if he commits a default in payments, a final decree be passed against him with permission to the appellant to apply for a personal decree against him for any deficiency after the sale of the mortgaged property. The suit was contested by the respondents. In paragraph 12 of its judgment, while deciding issue No. 7 relating to the relief, the learned trial Court observed as under:-

"12. In view of my findings 1 recorded above, the present suit succeeds and decreeing the same, I hereby pass a decree in favour of the plaintiff for recovery of Rs. 33,705.22 P. with costs. The defendants shall pay future interest at the rate of 7% per annum (as agreed in the letter Ex. PAPW 5 / 4) from the date of the institution of the suit till its realisation. The plaintiff Bank shall also be entitled to the amount by way of sale of the shop in the case decretal amount is not paid within a period of three months from today, decree in question will also be deemed to be a personal decree a gainst all the defendants, but, however, decree will be executable against defendant No. 3 qua the estate inherited by her from Ajay Kishan Mehta. Decree-sheet be prepared and the file be consigned to the record room."

8. On an application of the appellant Bank the execution of the decree was transferred to Delhi and on notice being issued by the Court of the Additional D