The executing court cannot go beyond the terms of the decree and bring into existence a new decree. The decree holder is not bound to exhaust his remedy against the principal borrower before suing the surety.

JUDGMENT :

A. Pasayat, J. - United Bank of India (hereinafter referred to as the decree holder) prayed for execution of decree passed in favour in T.R.S. No. 19 of 1985 by learned Additional subordinate Judge, Dhenkanal. Prayer was to attach vehicle bearing registration No. O.R.D. 5589 belonging to Jugal Kishore Sahoo (hereinafter referred to as the 'borrower') and to attach land building as described in schedule 'A' of the application belonging to Surindera Kumar (opp. party No. 3), and put attached properties to sale. In the execution proceeding petitioner was arrayed as opposite party No. 2.

2. Background in which the execution case name to be filed is as follows:

Jugal Kishore borrowed money from the bank, and Naba Kishore, the petitioner and Sarendra Kumar opp. party No. 3) were guarantor for repayment. No property was offered for mortgage by the borrower. Preliminary decree passed by learned Additional Subordinate Judge, so far as relevant for our purpose, contained the following stipulations:

.... The defendants who are jointly and severally liable are directed to pay the dues within three months hence failing which the plaintiff-bank is at liberty to realise the same in due process of law after making the decree final and for sale of the hypothecated vehicle. The sale proceeds be adjusted towards the decretal dues and in case the hypothecated vehicle is not available for sale of the sale proceeds and found to be insufficient then the mortgaged 'A' scheduled properties be sold for realisation of the decretal dues....

Undisputedly mortgage properties as described in schedule 'A' of execution application belonging to Surendra Kumar. Since there was no compliance with direction given by the learned Addl. Subordinate Judge in preliminary decree,bank moved for a final decree, and final decree inter alia contained the following stipulations:

.... It is hereby ordered and decreed that the mortgage properties in the aforesaid preliminary decree mentioned or a sufficient part thereof be sold, and that for the purpose of such sale the plaintiff shall produce before the court or such officer as it appoints, all documents in his possession or power relating to the mortgage property.

In the execution proceeding initialed by the bank, which was numbered Execution Case No. 1 of 1992, in the court of learned Addl. Subordinate Judge, Dhenakanal the bank impleaded borrower Jugal Kishore and the two guarantors Viz.; Naba Kishore and Surendra. Both guarantors raised objection regarding maintainability of the execution proceeding, so far as they are concerned mainly on two grounds, namely (i) they are guarantors, and therefore, principal borrower should be taken to guarantors, and therefore, principal borrower should be taken to task first; (ii) as per the decree hypothecated vehicle should be attached and put to auction sale, and therefore, if decretal amount is not satisfied in full, action be taken against the principal borrower and thereafter guarantors should be taken to task.

Learned Addl. Subordinate Judge overruled the prayer on the ground that there was no mention in the decree that the hypothecated vehicle has to be put to auction sale first, and no action can be taken against the guarantors unless and until the decree holders fails to execute the decree against judgment debtor No. 1, i.e. the borrower. According to him, liability being joint and several, decree holder was at liberty to execute the decree against any of the judgment debtors.

3. Learned Counsel for the petitioner submits that learned Addl. Subordinate Judge misconstrued the decree passed in the suit. According to him the above quoted portion from preliminary and final decree clearly indicate the nature of direction given. Learned Counsel for the bank on the other hand submitted that stipulations made in the preliminary decree and the final decree by learned Addl. Subordinate Judge run counter to prescriptions of Sections 122 and 140 of the Indian contract Act, 1872 (In shor