Executing court can go beyond the degree - - DH is not entitled to institute or maintain dual execution proceedings against principal debtor and guarantor at same time - one and the same decree amount - failure to issue section 33 notice - foreman is not entitled to recover future installment.

Citation

CDJ 1999 MHC 729

Dr.vimala vs M/S. Shriram chits and investment Pvt Ltd

1999(3) CTC 210

Head Note

The explanation offered on the part of the lower court in justifying the dual proceeding instituted by the petitioner that one execution proceeding is under Order 21, Rule 43 i.e. for the attachment of the immovable property and the other is under Order 21, Rule 48 i.e. for attachment of the salary or allowances and hence it cannot be said that both the execution proceedings cannot be maintained is neither sound, nor convincing nor agreeable. It is not the attachment of the immovable property or the salary which is relevant. What is essential at this juncture is whether that dual proceeding has been instituted for the realisation of one and the same decree amount or not. How could two independent execution proceedings be maintained against two judgment debtors separately, wherein the realisation of the amount aimed at by the decree holder is for double the decree amount, which he is not entitled to is the aspect that is to be given utmost importance. It is answered that the respondent/decree holder is not at all entitled to proceed in the manner as he has done which is nothing but illegal. For this question, it is answered that the respondent/judgment- debtor is not entitled to institute or maintain dual execution proceedings as he has done for the recovery of one and the same decree amount and hence this question is also answered in favour of the revision petitioner.

20. In view of the answer given in para 15 above for want of statutory notice in writing, the award passed in ARC.No. 907 of 1991 on the file of the District Registrar of Chits (North Madras) becomes a nullity and unacceptable and the lower court should have dismissed the Execution Proceeding. For the answer given for the last question in para 18 that no dual proceeding as instituted by the respondent in E.P.Nos. 2373 of 1993 and 2375 of 1993 could be maintained for the recovery of one and the same decree amount, the lower court has failed to arrive at a valid and proper decision. The order of the lower court in dismissing the petition filed by the petitioner in E.A.No. 2899 of 1994 suffers from patent errors of law and perversity in approach thus calling for interference by this court