This C.R.P. was admitted on 19-1-2007 and in C.R.P.M.P.No.180/2007 while granting interim stay, notice had been ordered.

2. Judgment-debtors 4, 6 and 7 in E.P.No.364/2005 in O.S.No.823/2002 on the file of Principal Junior Civil Judge, Machilipatnam are the Revision Petitioners. The said Judgment-debtors as petitioners filed E.A.No.1857/2005 in E.P.No.364/2005 in O.S.No.823/2002 aforesaid under Sections 47 and 151 of the Code of Civil Procedure (hereinafter in short referred to as "the Code" for the purpose of convenience) praying for an order that the Decree cannot be executed against the said petitioners-Judgment-debtors and the 5th Judgment-debtor as well. The 5th Judgment-debtor is the 5th respondent in the said E.A. and also 5th respondent in the present C.R.P. The learned Principal Junior Civil Judge, Machilipatnam after hearing the parties and after recording the respective stands taken by the parties, referred to the different provisions of the Indian Contract Act, relied on several decisions, and ultimately came to the conclusion that when a Decree had been made, no distinction can be drawn in between the Principal Debtor and the Sureties and all the Judgment-debtors are jointly and severally liable to pay the decretal amount and accordingly, dismissed the said application without costs. Aggrieved by the same, the present C.R.P. had been preferred.

3. Sri O.Manohar Reddy, the learned Counsel representing the Revision Petitioners had placed before this Court the Decree made by the Court and also the wording employed in the Decree and would maintain that in the light of the Decree, the suit dismissed as against D.1 to D.3, this Decree cannot be put into execution at all as against the other parties - the Revision Petitioners and the 5th respondent who were the just guarantors or the sureties, this would go to the very root of the matter and hence, inasmuch as the very executability of the Decree is in question or controversy, such objection can definitely be taken by way of an application on execution side under Section 47 read with Section 151 of the Code. The learned Counsel also placed before this Court not only the Decree made in O.S.No.823/2002 but also placed a copy of the Judgment in O.S.No.823/2002 on the file of Principal Junior Civil Judge, Machilipatnam and pointed out to the relevant portions of the findings recorded in this regard. The learned Counsel also would maintain that may be that these parties could have challenged that portion of the Decree by filing an appropriate appeal but however the mere fact that they had not chosen to invoke that remedy, may not operate as a bar, in the light of the inherent defect or the serious legal infirmity involved in the case. The learned Counsel also in detail had taken this Court through the different provisions of the Indian Contract Act and further placed reliance on certain decisions to substantiate his submissions. The Counsel also would maintain that the liability of the surety to pay the amount would arise only if there is a Decree against the principal debtor and not otherwise. The learned Counsel laid emphasis on the fact that when no Decree was made as against the legal heirs of the principal debtor, automatically it may have to be taken that the sureties also had been discharged from the liability and in this view of the matter, the Decree cannot be further executed. The Counsel also in detail had taken this Court through the relevant portions of the order, the relevant portion of the Decree made in the suit and also the relevant findings recorded in O.S.No.823/2002 as well.

4. Per contra, Sri K.Maheshwara Rao, the learned Counsel representing the respondent-Decree Holder-plaintiff also had taken this Court through the relevant findings recorded in O.S.No.823/2002 and would maintain that the only reason on which the suit was dismissed as against the legal heirs of the principal debtor-D.1 to D.3 was that no assets of the deceased principal debtor had