Liability of surety is coextensive with that of the principal debtor as per Section 128 of the Indian Contract Act, 1872.

ORDER :

1. The captioned writ petition is filed by the judgment debtor No.3 questioning the order dated 30.8.2021 passed by the Executing Court in issuing salary attachment warrant of petitioner herein.

2. The learned counsel for the petitioner would submit to this Court that respondent No.2 who is the principal borrower owns property worth Rs.10 crores and apart from that, the movables owned by respondent No.3 is worth Rs.10 lakhs. Therefore, she would contend that the Garnishee warrant attaching the petitioner's salary is liable to be set aside by this Court. She would also point out that the attachment of the salary of the petitioner is excessive and therefore, the executing Court has exceeded its jurisdiction. The grievance of the petitioner before this Court is that more than 1/3rd of petitioner's salary is sought to be attached and therefore, she would contend that the attachment is in violation of Article 14 of the Constitution of India.

3. The learned counsel for the petitioner has further argued and contended that the Deputy Registrar has no jurisdiction to issue a recovery certificate and therefore, she claims that the recovery certificate being invalid the execution proceedings is not maintainable at all.

4. The said argument canvassed by the learned counsel for the judgment debtor is equally repelled by the learned counsel appearing for respondent No.1-decree holder. In support of her contention, she has placed reliance on the judgment rendered by the Apex Court in the case of State Bank of India vs. M/s. Indexport Registered and others, AIR 1992 SC 1740. Placing reliance on the said judgment, she would contend that the decree holder cannot be forced to first exhaust remedy by way of execution of mortgage decree alone and then to proceed against the guarantor.

5. Heard the learned counsel for the petitioner and learned counsel appearing for respondent-decree holder. Perused the materials and also the order under challenge.

6. The present writ petition is filed on the basis of an award passed by the Deputy Registrar in dispute No.DRP/CFS/111/2017-18. The said award is not at all questioned by the judgment debtors. A recovery certificate is issued by the authority. If the award has attained finality, the decree holder has every right to proceed against the judgment debtor. On a bare reading of the provisions of Contract Act, more particularly Section 128 of Indian Contract Act, 1872, it is quite clear that the liability of surety is coextensive with that of the principal debtor. The judgment cited by the learned counsel appearing for the respondent is squarely applicable to the present case on hand. This principle is reiterated by the Apex Court in the case of Lalit Kumar Jain vs. Union of India and others, (2021) 9 SCC 321. In Ram Kishun and others vs. State of U.P. and others, AIR 2021 SC 2288, the Apex Court has held that it is prerogative of the creditor alone, whether he could move against the principal debtor first or the surety to realise the loan amount. The Apex Court was of the view that the surety has no right to restrain the execution of the decree against him until the creditor has exhausted his remedy against the principal debtor.

7. In view of the dictum laid down by the Apex Court, if the surety does not have the right to dictate terms to the creditor as to how he should make recovery, the present petitioner who is the guarantor cannot escape his liability guarantor for the debt taken by the principal debtor. Section 128 of the Indian Contract Act, 1872, would squarely apply to the case on hand.

8. For the reasons stated supra, I proceed to pass the following:

ORDER

The writ petition is dismissed.