LALITHAMBIKA Vs. ACHUTHAN NAIR
HIGH COURT OF KERALA
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(1.) All these appeals arise from the common order passed in E. A. 212/1994 in E.P. No. 74/94 in O.S. No. 451/89, E.A. 213/94 in E.P. 249/93 in O.S. No. 454/89, E.A. 214/94 in E.P. 273/93 in O.S. No. 466/89 and E.A. No. 215/94 in E.P. No. 180/93 in O.S. No. 518/89. In all these E.As, petitioner is the same and the respondents are respectively the decree holders in the above said suits. The respondents herein obtained decree in the above said suits against one Keasava Pillai, the brother of the claim petitioner / appellant. The case of the appellant admits that judgment debtors in the above four execution petitions is her brother. But she is not a party to the said suit and she is not liable for the decree debts. The appellant and her brother jointly purchased one cent of property with a room as per sale deed No. 2609/84. The appellant was the surety for the loan advanced to her brother by the Catholic Cyrian Bank. Since her brother defaulted payment of the amount, the bank filed suit, O.S. No. 83/1990 before the Sub Court, Paravur against the appellant and her brother. The suit was decreed against them. In the execution proceedings the property which was in joint ownership and possession of the appellant and her brother was brought to sale and it was sold in court auction for a sum of Rs. 1,03,000/-. The decree debt in the suit was 48,032/-. After discharging the debt, the balance amount comes to Rs. 54,968/- which was deposited before the Sub Court, Parur where the Execution Petition was pending. The case of the petitioner is that since her brother was the principal debtor, he is bound to pay the amount. Less than one half of the sale amount was sufficient for discharging the decree debt. Since the decree is satisfied with the sale proceeds of her brother, there is no necessity to proceed With the one half sale proceeds of the petitioner. So the appellant is entitled to get one - half of the sale proceeds, that is Rs. 51,500/-. Her brother Kesava Piallai is entitled to get the balance amount of Rs. 3,968/- after discharge of the decree debt in O.S. 83/90. The decree holders in the above said Execution Petitions applied for attachment of the amount belonged to the petitioner which was in deposit before the Sub Court, Parur. The attachment petitions were allowed and the amount was brought before the Munsiffs Court, Parur where the Execution Petitions are pending. On getting information with regard to the attachment, she filed the above said E.As. The appellant is not the debtor and no decree is passed against her in respect of the E.Ps. pending before the Munisff's Court. The judgment debtor in all the cases is Keasava Piallai, her brother. The contention of the decree holders is that since the decree is passed in O.S. No. 83/1990 against the appellant and her brother, they are equally liable for the decree amount. The court below accepted the contention raised by the decree holders and dismissed the petitions. Against the said order of the court below, these appeals are filed by the claim petitioner in the respective E.Ps.
(2.) There is no dispute with regard to the fact that the property which was sold in auction in execution of the decree in O.S. No. 83/1990 jointly belonged to the appellant and her brother. It is an admitted case that the brother Kesava Pillai was the principal debtor in O.S. No. 83/1990 and she was impleaded as the surety of the loan advanced to her brother. The contention of the decree holders is that the defendants are equally liable for the decree debt. Since the amount was advanced to Kesava Pillai and the present appellant was only a surety to the amount advanced this contention of the Decree Holders cannot be accepted. Admittedly loan was advanced to Kesava Pillai and the appellant was only a surety for the loan. If the decree amount could not be realised from the asset of the principal debtor, the decree holder can proceed with the asset of the surety. The property of the appellant and her brother was brought in auction in execution of the decree in O.S. 83/90 and it was sold for an amount of Rs. 1,30,000/-. The fact that she is entitled to one - half of the property cannot be disputed. Since one - half of the amount is sufficient to satisfy the decree in O.S. No. 83/1990, there is no need to proceed with the other half which absolutely belongs to the surety.
(3.) In such circumstances the court below ought to have allowed the EAs. The respondents have no case that the appellant is liable for the debt of Kesava Pillai, the Judgment Debtor. So she is not liable to discharge the debt of her brother and decree holders are not entitled to attach the amount belongs to her. In such circumstances I am constrained to set aside the impugned order passed by the court below and the E.As. filed by the appellant are allowed consequently all the E.F As. are allowed.;
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