The appeal court affirmed that a surety can be treated as a principal debtor unless a specific agreement states otherwise, reinforcing conditions for deposit in appeal processes to protect creditors.

JUDGMENT :

1. This civil revision petition is preferred aggrieved by the order dated 27.02.2025 passed in IA No.763 of 2024 in AS No.2 of 2023 on the file of the IX Additional District Judge, West Godavari District at Kovvur (for short “the Trial Court”).

2. The petitioner herein is the defendant and the respondent herein is the plaintiff. The respondent/plaintiff filed suit in OS No.104 of 2019 against the petitioner/defendant based on promissory note and the said suit was decreed in favour of the respondent/plaintiff on 02.07.2022. Aggrieved by the said judgment and decree, the respondent/plaintiff filed EP No.17 of 2024 before the Executing Court for attachment. If the respondent succeed in his illegal efforts, the petitioner will put to irreparable loss. Therefore, the petitioner filed the impugned IA No.763/2024 and the same was allowed subject to deposit of 1/4th of decree amount by the petitioner/J.Dr. on or before 13.03.2025. Proceedings in EP No.17/2024 in OS No.104/2019 on the file of I Additional Civil Judge (Junior Division), Kovvur shall stand stayed from the date of deposit of 1/4th of decree amount by the petitioner/J.Dr. If the petitioner/J.Dr failed to comply the condition precedent for operation of stay, the execution Court is at liberty to proceed with the E.P. Challenging the same the present civil revision petition came to be filed.

3. Heard Sri Yadavalli Ramesh, learned Counsel appearing for the petitioner and Sri Siva Rama Krishna Kolluru, learned Counsel appearing for the respondent. Perused the material on record.

4. On hearing, learned Counsel for the petitioner submits that the IX Additional District Judge failed to consider while passing the impugned order dated 27.02.2025 in directing the petitioner/J.Dr., to deposit 1/4th of the decree amount on or before 13.03.2025, that property worth of Rs.1,79,40,000/- of the petitioner/J.Dr., was already under attachment of the Additional Junior Civil Judge, Kovvur (for short “the Trial Court”) as per orders in IA No.334 of 2019 in OS No.104 of 2019. He submits that the Trial Court failed to consider that substantial loss would cause to the petitioner/J.Dr., if the execution Court is allowed to sell the properties more worth than the decree amount. It also failed to observe that attachment of the properties of the petitioner/J.Dr., before judgment under Order 38 Rule 5 of CPC will amounts to security under Order 41 Rule 5(3)(c) of CPC for the due performance of the decree as may ultimately binding upon him. He further submits that the Trial Court ought to have consider while passing the impugned order that all the properties of the petitioner/J.Dr., is under attachment of Court even before passing of the decree and the petitioner could not avail any amount from the known persons or banks. He further submits that the Trial Court has also failed to consider that the petitioner herein filed a petition under Section 45 of the Indian EVIDENCE ACT to send the promissory notes for comparison with his admitted signatures and the same is pending for disposal and not filing the counter from 01.04.2024.

5. Per contra, learned Counsel appearing for the respondent submits that the petitioner filed EA No.334/2019 in OS No.104/2019 and that the Trial Court ordered notice under Order 38 Rule 4 of CPC on 19.03.2019 and that the petitioner failed to comply the order passed in IA No.334 of 2019 by providing third party security and thereby the suit schedule property was attached and attachment was effected on 23.04.2019. He further submits that the petitioner also filed IA No.35/2024 in EP No.17/2024 and the same was dism