ORDER
R.R.K. Trivedi, J.
1. This appeal has been preferred from the order dated 11th July, 1991, passed by learned III Additional District Judge, Dehradun, allowing thereby the review application filed by decree-holder, Punjab National Bank. Sri K. L. Grover has accepted notice for decree-holder respondent, Punjab National Bank. We have heard Sri R. K. Jain, learned counsel for appellant and Sri K. L. Grover.
2. The appellant has moved an application under Order 1 Rule 10, C.P.C. and has prayed that Sri Manjeet Singh and Sri Vijai Pal Singh may also be impleaded as respondents Nos. 2 and 3 in the appeal, as they were impleaded as defendants in Original Suit No. 740 of 1985. It has been submitted that under an inadvertent mistake they have been left to be impleaded as respondents in the present appeal. We have heard both the parties on this application. As the limitation for filing the present appeal is up to 10th October, 1991 as shown in the report of the Stamp Reporter, the aforesaid persons can be impleaded by the respondents without causing any prejudice to the decree-holder respondents. The application is, accordingly, allowed. The memo of appeal shall be accordingly corrected by impleading Manjeet Singh and Vijai Pal Singh as respondents Nos. 2 and 3 respectively.
3. The facts, in brief giving rise to the present appeal, are that Manjeet Singh, respondent No. 2 took a loan of Rupees 1,85,000/- on 23rd October, 1980 from Punjab National Bank for purchasing of Tata Diesal vehicle. The appellant Sunder Singh and respondent No. 3 Vijai Pal Singh stood guarantor for payment of the amount of loan; on strength of their guarantee the aforesaid
amount was given by Punjab National Bank. As the amount was not paid, Punjab National Bank filed Original Suit No. 740 of 1985 for recovery of Rs. 2,38,200,85 p. together with pendente lite and future interest thereon from the defendants. Manjeet Singh, Principal debtor was arrayed as defendant N’o. 1 whereas Sunder Singh (appellant) and Vijai Pal Singh were impleaded as defendants Nos. 2 and 3 in the above case. The relief claimed in the above suit is material for appreciating the controversy between the parties which is being reproduced below :
“That adecree for Rs. 2,38,200,85 (Rupees two lakhs-thirty eight thousand two hundred and paise eighty five only) together with pendente lite and future interest thereon at the rate of 4 per cent above the Reserve Bank of India rate subject to a minimum rate of 13 per cent per annum with quarterly rests be passed in favour of the plaintiff bank and against the defendants jointly and severally.”
3A. The suit was contested by Manjeet Singh alone. The present appellant and Vijai Pal Singh did not file any written statement in spite of service and did not put any contest to the claim of the bank. The suit was decreed on 11th May, 1989. While deciding issue No. 2 the trial court recorded a finding that the defendant No. 1 Manjeet Singh has no other property and consequently his request was accepted for payment of the decretal amount on instalments of Rs. 8,000/- per month. The operative part of the judgment is being quoted below:–
“Plaintiffs suit for recovery of Rupees 2,85,200.85 is decreed with costs together with pendente lite and further and future interest @ 13% per annum with quarterly rest. However, defendant No. 1 is entitled to pay the decretal amount in the monthly instalments of Rs. 8,000/- each. The first instalment shall become due on 1-6-86, in case of default of payment of any instalment, the entire decretal amount shall become due. The case will be Ex parte against defendants Nos. 2 and 3.”
4. As Manjeet Singh failed to pay the decretal amount on the basis of the instalments fixed by the trial court, Punjab
National Bank, decree-holder initiated execu-tion against the present appellant Sunder Singh. This execution application was filed on 25th September, 1990. In the execution application, it was mentioned that the judgment-debtor Manjeet Singh has not deposited any instalment was directed under the decree and hence the whole amount has become due. The decretal amount claimed in the execution was Rs. 4,49,899.45 p.
5. Sunder Singh, the present appellant on receipt of the notice on the aforesaid application, filed an objection saying that the decree cannot be executed against him as the decree-holder has not proceeded against the vehicle hypothecated nor has tried to recover the amount from other judgment-debtors. This objection of appellant was contested by the bank. However, the executing court vide order dated 1st May, 1991, allowed the objection of appellant and directed the decree-holder bank to proceed against the appellant only after exhausting the remedies against the principal debtor and the hypothecated property. Aggrieved by this order, a review application was filed by the bank, decree-holder which was contested by the appellant. However, the executing court by order dated 11th July, 1991, has allowed the review application and has set aside its order dated 1st May, 1991 and the objection of Sunder Singh resisting execution of the decree against him has been rejected. Aggrieved by this order, the appellant has filed the present appeal.
6. Sri R. K. Jain, learned counsel for the appellant has argued that as the order dated 1st May, 1991 was passed by the executing court after considering the judgments of the Hon’ble Supreme Court reported in AIR 1969 SC 297 and AIR 1987 SC 1078 and the objection of the appellant was allowed, it was not open to the executing court to review its order. In sum and substance the contention is that the impugned orderdated 11th July, 1991 is without jurisdiction as no ground for review was available. The order dated 1st May, 1991 does not suffer from any mistake or error apparent on the face of record. Sri K. L. Grover, on the other hand, has submitted that
the learned III Addl. District Judge, Dehradun
passed an order dated 1st May, 1991 under misconception of law and misinterpreting the view taken by the Hon’ble Supreme Court in its judgment reported in AIR 1987 SC 1078 and as such the learned executing court was fully justified in reviewing its order in the interest of justice.
7. We have thoroughly considered the rival contentions advanced by the learned counsel and we have also perused the judgments of Hon’ble Supreme Court referred to above. In our opinion, the executing court was bound to execute the decree as passed in the suit in favour of the decree-holder. A perusal of the relief claimed and the decree passed shows that the decree passed in the suit is not against any hypothecated property. It has been passed personally against all the defendants and all the defendants in the suit are thus jointly and severally liable for the decretal amount. The executing court, in fact, could not take into account this material facts, while applying the view expressed by Hon’ble Supreme Court in its judgment reported in AIR 1987 SC 1078. The decree in question before the Hon’ble Supreme Court in the above judgment was wherein it was passed against the mortgaged property also. It was in peculiar facts and circumstances of that case that Hon’ble Supreme Court expressed the opinion that the decree should have been executed firstly against the mortgaged property and then only against the guarantor judgment-debtor. Thus the facts of the present case are entirely different and executing court committed a manifest error in passing the orderdated 1st May, 1991 directing the execution of decree against hypothecated vehicle and the principal debtor. This direction was against the spirit of the decree and cannot be legally passed. The liability of the principal debtor and the guarantor is coextensive under S. 128 of the Contract Act. The guarantor cannot be allowed to say that he cannot be compelled to take the decretal amount until all the remedy is exhausted against the principal debtor or the property hypothecated. If such a course is permitted at the instance of the judgment-debtor, it shall defeat the very purpose and object of the
guarantee extended by the appellant on strength of which the loan was given by the decree-holder principal debtor. Hon’ble Supreme Court in the case of Bank of Bihar Ltd. v. Dr. Damodar Prasad reported in AIR 1969 SC 297, observed as under in para 6 of the judgment:
“A guarantee is a collateral security usually taken by a banker. The security will become useless if his rights against the surety can be so easily cut down. The impugned direction cannot be justified under Order 20, R. 11(1) the court had the inherent power under S. 151 to direct postponement of execution of the decree, the ends of justice did not require such postponement.”
Thus the impugned order dated 11th July, 1991 has rightly been passed by the learned III Addl. District Judge, Dehradun in allowing the review petition.
8. The contention of Sri Jain that his order dated 1st May, 1991 was passed after considering both the judgments of Hon’ble Supreme Court and a particular view was taken by the court below, it was not open to, the same court to take another view of the matter subsequently. This submission of Sri Jain though appear attractive, but in our opinion, hasd no force. A perusal of the order dated 1st May, 1991 will show that the executing court while passing the order ignored the decree passed in the case which was put for execution before him. The order passed ignoring such an important material, can be safely said to suffer from apparent mistake or error. Further in can also not be denied that the fact of the present case were entirely different and the view expressed by Hon’ble Supreme Court in AIR 1987 SC 1078 could not be applied in the present case. If the order is passed under the misconception of law or on basis of wrong application of the judgment of Hon’ble Supreme Court, in our opinion, it shall amount to error of law on the face of record and such an error can be legally corrected by reviewing the judgment.
9. We can also not ignore certain facts involved in the case. The amount of Rs. 1,85,000/- was given as loan on 23rd October, 1980. However as nothing was paid
the decree-holder was compelled to file a suit in 1985 which could be decree on 11th May, 1989. When the decree was put for execution in 1990, an objection was filed by appellant, which could be decided on 1st May, 1991 in his favour, then a review application was pending which has been decided by the order dated 11th July, 1991. Thus about 11 years have passed but the decree-holder could not get any amount due for the loan advanced. It is also noteworthy that Sunder Singh, present appellant and Manjeet Singh, principal debtor reside in the same accommodation i.e. 1-C Hardwar Road, district Dehradun. Though relationship has not been disclosed but it can be safely inferred that they have some close relationship. Non-payment of the amount of loan for such a long time cannot be appreciated in any manner. Since the Punjab National Bank is a nationalised bank delay in payment of the decretal amount is also not in the public interest.
10. In the facts and circumstances of the case, the order passed by the court below, in our opinion, does not suffer from any illegality or incorrectness or error of jurisdiction.
11. For the reasons recorded above, this appeal has no force and is, accordingly, dismissed. However, there shall be no order as to costs.
12. Appeal dismissed.