The main legal point established in the judgment is that the principle of estoppel by election does not apply when the two remedies available are not mutually exclusive, and the executing court can decline to execute the decree only in cases where the court lacks inherent jurisdiction.

1. This case comes up before a Division Bench on reference by Varghese Kalliath, J, doubting the correctness of the decision of a learned single judge of this court in Maniyan v. Federal Bank Ltd. (1988 (2) KLT 722). In that case it is held that for the reason of the decree holder's election to resort to the procedure under the Revenue Recovery Act, he is precluded from executing the decree of the civil court and the decree itself is void ab initio as one passed without jurisdiction.

2. A similar question arises for decision in this C.R.P. The revision petitioner namely, the Canara Bank had advanced a loan to the respondent for agricultural purposes. For failure of the respondent to repay the loan, the bank took revenue recovery proceedings by resort to the notification S.R.O. 797/79 issued by the Government of Kerala in exercise of the powers under S.71 of the Kerala Revenue Recovery Act (Act 15 of 1968). The relevant part of the notification is extracted below:

"S.R.O. No.797/79 -- In exercise of the powers conferred by S.71 of the Kerala Revenue Recovery Act, 1968 (15-6-1968) and in supersession of the Notification No.686/B3/78/RD dated the 24th November 1978 published as S.R.O. No. 1199/78 in the Kerala Gazette No.52 dated the 26th December 1978, the Government of Kerala, being satisfied that it is necessary to do so in public interest, hereby declare that the provisions of the said Act shall be applicable to the recovery of amounts due from any person to any bank on account of any loan advanced to such person by that bank for agriculture or agricultural purposes".

3. Since no recovery could be effected, the bank instituted O.S.148 of 1985 before the Sub Court, Kozhikode and obtained a decree on 30-8-1988. The decree holder bank thereafter filed E.P.278 of 1988 for attachment and sale of the cattle purchased by the judgment debtor with the loan advanced by the bank. It is, at that stage, the judgment debtor filed E.A 45 of 1989 for a declaration that the decree obtained by the bank is null and void and cannot be executed. The execution court following the decision in Maniyan's case dismissed the execution petition declaring the decree as null and void. It is, against this, that the decree holder bank has filed this revision petition.

4. A speedier remedy as provided for in the above notification for recovery of loans advanced by banks for purposes mentioned therein is perfectly valid and cannot be assailed in the light of the decisions of the Supreme Court in M. Chhagganlal v. Greater Bombay Municipality (AIR 1974 SC 2009), State of U.P. v. Arshad Ali Khan (AIR 1982 SC 780) and State of Gujarat V. Dharamdas (AIR 1982 SC 781). The resort to such a remedy, cannot, however, be said to create an estoppel by election as held in Maniyan's case to preclude the bank from pursuing the ordinary remedy of a suit for recovery of the loan. Spencer Bower in his estoppel by representation Third Edition referring to election between two alternative courses of action states at page 324:

"Where A in his dealing with B, being at liberty to adopt either of two mutually exclusive steps, proceedings, courses of action, or attitudes, in relation to B, elects to take or adopt one of them, and to reject the other, or to "waive" his right in respect thereof, and A's declaration of such election or "waiver" by words, conduct, or inaction, influence B to alter his position to his detriment, A is estopped, as against B, from thereafter resorting to the course of action which he has thus intimated his intention of relinquishing, dispensing with, or "waiving". As to the principle of election applied in the conduct of litigations, the learned author states at page 333:

"The last of the four fields in which the doctrine under discussion may be observed in operation, and, perhaps, the most important and interesting of them all, because yielding the greatest variety of illustrative examples, is the conduct of litigation, in the course of which it very