S. ANANDA REDDY, J.

( 1 ) THE petitioner/decree-holder in the execution petition is the petitioner in the present revision petition. The decree-holder, which is a Nationalised Bank, filed the execution petition against the second judgment-debtor, who is a surety for the recovery of the amount due by the principal debtor.

( 2 ) THE Respondent herein, who was the judgment-debtor filed a counter stating that he was only a surety and not the original borrower and he is not liable to pay the debt and the decree-holder must proceed against the secured properties of the first judgment-debtor. It is also stated that as the suit was abated against the original borrower, the decree passed against the second judgment-debtor is void, illegal and is not executable. It is also contended that the Government of India cancelled the agricultural debts, to the extent of Rs. 10,000/- and as the first judgment-debtor is an agriculturist and the first judgment-debtor borrowed the amount for agricultural purpose, the debt is also deemed to have been discharged. Thereafter, the executing Court framed the point whether the decree obtained against the respondent/second judgment-debtor is executable or not? The executing Court relying upon a judgment of this Court in the case of Royal Finance Corporation, Gudur v. Venkata Seshayya, 1983 (1) ALT 344, held that as the debt had abated against the principal debtor, the debt against the surety also stands discharged. Therefore, the executing Court dismissed the execution petition. Aggrieved by the said order, the petitioner/decree-holder has come up in the present revision.

( 3 ) THE learned counsel for the petitioner contended that the executing Court is in error in dismissing the execution petition as not executable against the respondent/2nd judgment-debtor. It is contended that as the suit was decreed against the second judgment-debtor, the executing Court cannot go behind the decree and hold that the decree is not executable against the second judgment-debtor. It is contended by the learned counsel that the surety s liability is co-extensive with that of the principal debtor and the suit has been instituted against both of them. The trial Court after considering the merits of the matter passed a decree against the surety. When once a decree has been passed against the surety, the surety is bound by the said decree and the executing Court cannot go into the merits of the said decree.

( 4 ) THE learned counsel for the petitioner/decree-holder relied upon the following decisions in support of his contentions :- nur Din v. Allah Ditta, 138 (1932) Indian Cases 305; Bank of Bihar v. Damodar Prasad, ; V. Seetharamaiah v. Srirama Motor Finance Corpn. , ; M. S. E. B. Bombay v. Official Liquidator, and State Bank of India v M/s. Indesport Registered,.

( 5 ) THE learned counsel for the respondent/2nd judgment-debtor, on the other hand, supported the order of the executing Court. It is contended by the learned counsel that the debt against the principal debtor has abated by the acts/omissions of the creditor/decree-holder. When once the debt stands discharged against the principal debtor, there is no liability for the surety and the debt equally stands discharged against the surety also. The learned counsel contended that the surety s liability is as long as the principal debtor s liability continues. When once either by operation of law or by an act or omission of the creditor, the liability of the principal debtor stands discharged, the liability of the surety also automatically gets discharged. In the present case, the principal debtor died and because of the omission on the part of the plaintiff/creditor, the suit had abated against the principal debtor for its failure to bring the legal representatives of the principal debtor on record. The result was that the suit had abated against the principal debtor and the debt stands discharged. When once the debt stands discharged against the principal debtor, there i

Click Here to Read the rest of this document