JUDGMENT - S.G. Mutalik, J.:---Against the impugned order passed by the 2nd joint Civil Judge, Senior Division, Nagpur below exhibit 6 in Special Darkhast No. 200 of 1991 dated 6-2-1992 by which lien created by the decree-holder Bank present applicant on the Term Deposit Receipt and Recurring Deposit Account (for short the T.D.R. R.D. A/C respectively) of the original judgment-debtor/present non-applicant No.2, is released, this civil revision application is filed by the applicant/decree-holder. 

2. The applicant filed Special Civil Suit No. 312 of 86 for recovery of Rs. 64,305.48 from the principal debtor/defendant No. 1 (present respondent No. 1-judgment-debtor) and the non-applicant No. 2 who stood as a surety to the non-applicant No. 1. Accordingly, the documents were also executed by the respondents in favour of the applicant. Both the non-applicants remained absent and hence the suit came to be decreed and subsequently, the applicant/decree-holder filed Special Darkhast No. 200 of 1991 on 16-8-1991 for recovery of the decretal amount, costs etc.

3. It is seen from the record that after the decree is passed in Special C.S. No. 312 of 1986, the non-applicant No. 2 deposited a sum of Rs. 32,793/- in TDR No. 856671 with the applicant on joint names of himself and his wife with Itwari Branch. They are also having joint R.D. A/C No. SB/137/RD which were to mature on 31-11-1991 for a sum of Rs. 37,788/-. After filing Special Darkhast No. 200 of 1991, the applicant Bank kept lien on both these accounts without exhausting any remedy against the non-applicant No. 1 knowing full well that the joint account cannot be alienated and the judgment and decree has not become final. The non-applicant No. 2 filed M.J.C. No. 172 of 1991 and complained about the illegal action on the part of the applicant when lien was kept on both these accounts. He prayed that the applicant be immediately directed to release the amounts under both these accounts by removing the lien.

4. The applicant filed objections and in short contended that in view of the provisions of section 171 of the Contract Act, the lien kept by the Bank on these two accounts is proper and the non-applicant No. 2 cannot complain about it. It is contended that when both these accounts are on joint names of the non-applicant No. 2 and his wife, the presumption is that the amount belongs to the non-applicant No. 2 only. It is further contended that the applicant has simply kept lien over these accounts and thus a right is created to retain the said amount. However, the same is not appropriated towards the dues mentioned in the Special Darkhast No. 200 of 1991. It is further contended that in Special Civil Suit No. 312 of 1986, an ex-parte decree is passed against both the non-applicants jointly and severally and hence the applicant has a choice to proceed with either party for recovery of the said amount. The applicant prayed for dismissing the application (Exhibit 6).

5. It is submitted by Shri. A.S. Pophaly that when the decree in the special civil suit is passed jointly and severally against non- applicants, the applicant-Bank is at liberty to execute the decree against any one of them. He further submitted that the liability of the surety is co-extensive with that of the principal debtor and hence it is not open for the non applicant to contend that the applicant should proceed at the first instance against the principal debtor and exhaust all the remedies and only thereafter the applicant can proceed against the surety. According to him, when TDR is in the name of the non-applicant and his wife, the presumption is that the amount belongs to the non-applicant and not his wife. During the course of arguments, he placed reliance on number of rulings with which I shall deal later on.

6. It is submitted by Shri N.S. Bhattad, the learned Counsel for the non-applicants that when the accounts are in the joint names of the non-applicant No. 2 and his wife, there cannot be such a presump

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