Ganga Deo Narain Singh vs Joti Lal Sahu on 8 February, 1917

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Patna High Court
Ganga Deo Narain Singh vs Joti Lal Sahu on 8 February, 1917
Equivalent citations: 39 Ind Cas 648
Author: Chapman
Bench: Chapman, Roe


JUDGMENT

Chapman, J.

1. This is an appeal against an order directing execution to proceed against a surety. The judgment-debtor had obtained the stay of execution upon the surety giving security. The judgment-creditor has exhausted his remedies against the judgent-debtor and now asks to proceed against the surety for the remainder of his debt.

2. The first ground of objection was that the judgment-creditor cannot in execution ask for the sale of the property which the surety pledged. Reliance is bad upon Rule 14, Order XXXIV, which says that “where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit.” The order directing the surety to pay is not, however, a decree under the Code except for the purposes of appeal (Section 145). This was, therefore, not a case of a person obtaining a decree for the payment of money. There is no objection to the judgment creditor proceeding with the sale of the property pledged, provided the sale does not purport to be a sale of mortgaged property. The judgment-creditor runs the risk of there being other liens on the property and he also runs the risk of the right of redemption being subsequently held to remain alive–otherwise there is no objection to his proceeding in this manner.

3. The other objection was that inasmuch as the judgment-creditor had proceeded against the judgment-debtor in respect of other debts, he had done an act which was inconsistent with the rights of the surety. Such a contention appears to me to be quite untenable.

4. The appeal is dismissed with costs.

Roe, J.

5. I agree.

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