The central legal point established in the judgment is that there is no bar in law to proceed simultaneously against the person and property of the judgment-debtor in execution of a decree.

B.N. Patnaik, J.

The defendants in O.S. No. 24 of 1991 on the file of the Principal Sub Court, Attingal, have preferred this revision against the order dated 18.12.1995 in E.P. 87/93 arising out of the said suit. By the impugned order, the learned Sub-Judge ordered execution of the decree by arrest and detention of the 2nd petitioner herein.

2. Plaintiff-respondent filed the suit against the petitioners' for realisation of a sum

of Rs. 60,000/- with interest, which was advanced to the defendants in 1985. The second defendant (judgment debtor (2nd petitioner herein) had executed a demand promissory note and also hypothecated the plaint schedule properties consisting of two items as society. The trial court passed the decree on 16-11-1992 for recovery of an amount of Rs. 86,182.77 with future interest and cost. The decree which is a composite one reads' as follows:

"For the reasons stated in the judgment, plaintiff is allowed to realise Rs. 86,182.77 (Rupee Eighty six thousand One hundred and Eighty two and seventy seven paise) with interest at the rate of 13% per annum with quarterly rests and costs of the suit from the defendants and from their properties and by sale of plaint schedule properties."

3. The respondent herein levied the execution at the same time against the person and property of the judgment-debtor - 2nd petitioner for realisation of the amount. It is contended by the 2nd petitioner that the decree-holder should have proceeded against the hypothecated properties in plaint A schedule at the first instance without proceeding against his person. By the impugned order, the execution court directed for his arrest and detention in civil prison. This order is assailed as an illegal one.

4. Learned counsel for the petitioners by relying on the decision of the Supreme Court in Union Bank of India v. Manku Narayana (A.I.R.1987 S.C.1078) contended that where the decree in execution is a composite decree personally against the principal debtor and the guarantor and also against the mortgaged property, and a portion of the decreed amount is covered by the mortgage, the decree-holder Bank has to proceed against the mortgaged property first and then proceed against the guarantor. In this case, the second petitioner is the principal debtor.

5. Learned counsel appearing for the respondent - bank has contended that the above decision was overruled by a larger Bench of the Supreme Court i n Stale Bank of India v. U/s Index port Registered and Others ( A.I.R.1992 S.C.1740), where it has been laid down as follows :

"If the composite decree is a decree which is both a personal decree as well as a mortgage decree, without any limitation on its execution, the decree holder, in principle, cannot be forced to first exhaust the remedy by way of execution of the mortgage decree alone and told that only if the amount recovered is insufficient, he can be permitted to lake recourse to the execution of the personal decree. It is the right of the decree holder to proceed with it in a way lie likes. Section 128 of the Indian Contract Act itself provides that 'the liability of the surety is co-extensive with that of

the principal debtor, unless it is otherwise provided by the contract."

If on principle a guarantor could be used without even suing (lie principal debtor there is no reason, even if the decretal amount is covered by the mortgaged decree, to force the decree-holder to proceed against the mortgaged property first and to proceed against the guarantor. It appears the observations in Manku Nurayana's case (AIR 1987 SC 1078) are not based on any established principle of law and/or reasons, and in fact, are contrary to law. It, of course, depends on the facts of each case how the composite decree is drawn up. But if the composite decree is a decree which is both a personal decree as well as a mortgage decree, without any limitation on its execution, the decree-holder, in principle, cannot be forced to first exhaust the remedy by way of