TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE brief facts of the case are that the petitioner Bank filed a suit for recovery of the advanced amount against the principal borrowers and against the guarantor, who is non- petitioner No. 5 in this revision petition. Since the suit was for recovery of the money from borrowers as well as for recovery of the money by sale of the mortgaged property, therefore, the trial court passed the preliminary decree on 28. 3. 1992 for Rs. 1,01,740. 20. So far as determination of the liabilities of the principal borrowers and the guarantor, is concerned, stand concluded by the decree dated 28. 3. 1992. Since the principal borrowers failed to make payment of the decretal amount, therefore, application was submitted by the petitioner Bank for passing final decree so that the amount may be recovered by sale of the mortgaged property upon which the trial court passed the final decree on 23. 2. 1994 holding that since the principal borrowers have failed to make payment of the decretal amount within the time granted by the trial court, therefore, the plaintiff is entitled to recover the amount by sale of the mortgaged property. The decree-holder submitted the execution petition without any delay, which appears to be filed in the year 1994. In the execution petition, an objection was submitted by the non- petitioner No. 5 guarantor, by filing an application under Section 151 CPC pointing out that the principal borrowers have sufficient means and property to pay the decretal amount, therefore, first the decree-holder should proceed against the principal borrowers and recover the amount and in case the decree-holder is unable to recover any amount from the principal borrowers or able to recover amount shorter than the decretal amount from the principal borrowers, then and then only, the decree-holder can proceed against the property mortgaged with the bank in security to repayment of the loan advanced to the principal borrowers. The executing court, by order dated 26. 5. 1995, allowed the application of the guarantor non-petitioner No. 5 holding that the decree-holder can first proceed against the judgment-debtors non- petitioners debtors No. 1 to 4 who are principal debtors and in case the decree-holder fails to recover amount from the non- petitioners Nos. 1 to 4, then the decree-holder may proceed against the judgment-debtor No. 5 who is non-petitioner No. 5 in this revision petition. Being aggrieved against the order dated 26. 5. 1995, the petitioner preferred this revision petition before this Court on 9. 8. 1995. This court passed the order on 10. 11. 1995 for issuing notice to the non-petitioners to show cause why the revision petition may not be heard and disposed of at admission stage. The revision petition remained pending before this Court and ultimately on 17. 4. 2000, this Court ordered as under:- " At this stage, it is not proper to dispense with the service of respondent No. 1 to 4. If the respondent No. 1 to 4 have no property then petitioner should proceed against respondent no. 2 and 3 who are principal borrower under Order 21 Rule 37 for detention in civil imprisonment and report to this court, out come of detention in civil imprisonment then alone matter be proceeded further. " The case thereafter was taken up on 15. 7. 2003 and this court invited attention of the learned counsel for the petitioner bank towards the order dated 17. 4. 2000 and the learned counsel for the petitioner was directed to submit the information about the steps taken by the petitioner bank for recovery of the amount from the principal borrowers. Learned counsel for the petitioner informed that the petitioner Bank proceeded against the principal borrowers by moving an application for principal borrowers' detention in civil imprisonment. This application was filed after delay of more than a year from this court's order dated 17. 4. 2000 on 14. 8. 2001 which could have done by the petitioner bank without order dated 17. 4. 2000 of this Court. This court observed that this clearly shown the little interest shown by the petitioner bank in proceeding against the principal borrowers. However, on 15. 7. 2003, learned counsel Shri B. V. Thanvi appeared on behalf of the principal borrowers and submitted that some fund in likely to be come into the hands of one of the principal borrowers. This found is to come in the hands of one of the principal borrowers as one Shri K. K. Paliwal expired and benefits out of his service rendered with the employer were likely to be given to the one of the principal borrowers. It was stated that after the receipt of the said fund, the principal borrowers will try to settle the matter after negotiation with the bank and will discharge their liabilities. This willingness of the principal borrowers stand belied as the case was listed in court on 18. 8. 2003 after one month but till then only efforts made by the principal borrowers and disclosed in the court by the learned counsel for the principal borrowers were that the principal borrowers approached the petitioner bank's manager once for settlement. Neither any proposal was submitted nor any proposal was under consideration of the bank. It was also pointed out by the learned counsel for the principal borrowers that because of certain objections raised by the employer of deceased Shri Paliwal, the amount has not been paid to the principal borrowers and, therefore, now they are proposing to file a writ petition against the employer of Shri Paliwal. This court, by order dated 18. 8. 2003, observed that the parties are not serious about settling the matter, therefore, the revision petition can not be kept pending which is pending since last about 8 years in this court and fixed the date for final disposal. The revision petition was listed in court on 25. 8. 2003 and 26. 8. 2003 but adjourned so that progress may be seen by the court. This court directed the learned counsel for the principal borrowers to submit the progress report in settlement between the parties by filing an affidavit. No affidavit has been filed by the principal borrowers. Learned counsel for the petitioner Bank stated that there is no chance of settlement and learned counsel for the borrowers, instead of showing any progress for settlement, tried to submit that revision petition may not be heard as application for sending borrowers to civil jail is pending before the executing court. The prayer of the learned counsel for the borrowers not to hear this revision of the year 1995 in the year 2003, deserves to be rejected in view of the reasons hereinafter mentioned. Therefore, the revision petition is heard on merits.
(3.) THE learned counsel for guarantor non-petitioner No. 5 also, but without vehemence, raised objection about the proceeding of this court to hear this revision petition by taking help of the order dated 17. 4. 2000 and it is submitted that since no steps in true spirit have been taken by the petitioner decree-holder to comply with the order of this court dated 17. 4. 2000, therefore, this court may decide to proceed as just and proper without saying that the court should not hear this revision petition. Despite pointing out the order dated 17. 4. 2000, learned counsel for the non-petitioner No. 5 only requested that court may decide its procedure. Though there is a lack of vehemence in the argument but pointing out towards the order dated 17. 4. 2000 indicates that request was that this court should not proceed to decide this revision petition in view of the order dated 17. 4. 2000. This preliminary objection raised by the learned counsel for the non-petitioner No. 5 appears to have been raised by ignoring the subsequent orders passed by this Court dated 15. 7. 2003 and 18. 8. 2003. In the said two orders, this court has taken note of the action of the petitioner decree-holder of moving the application for detention in civil imprisonment of the principal borrowers though after delay and on 18. 8. 2003 this court, after taking note of the efforts made by both the parties, passed the order for fixing the matter for final disposal. In view of the above two subsequent two orders, the objection of the learned counsel for the non-petitioner No. 5 has no legs to stand. It will also be worthwhile to mention here that the order dated 17. 4. 2000 is an order to decide the procedure to be adopted by this court and the procedure cannot give an actionable cause to any of the parties so as to prevent the court from adopting a procedure in the changed circumstances. This court obviously must not have not though that by whatever reason and by change in circumstances, this court will never proceed to hear this revision petition and shall keep the revision pending for ever if the decree-holder did not proceed against the non-petitioners Nos. 2 and 3. It is true that for non-compliance of the direction of this court, the revision petition itself can be dismissed but in a case where decree was obtained by the bank and there is slackness on the part of the bank in recovering the amount by adopting other modes, the effect of the entire decree cannot be nullified in view of the facts which have come on record subsequently and in view of the facts which have come before this court in the arguments of the parties. Learned counsel for the petitioner submitted that whatever efforts (little) were made, but they failed. It has come on record that the amount claimed by the legal representatives of the deceased Shri Paliwal from Shri Paliwal's employer is disputed by the employer and the principal borrowers are proposing to prefer writ petition challenging the action of the employer for getting the money. It is not stated till today that any writ petition has been filed or any order has been passed by the court in the matter about the claim of benefit of one of the principal borrowers. It is stated by the learned counsel for the petitioner bank that after filing the application for detention of principal borrowers in civil imprisonment on 27. 8. 2001, the petitioner was directed to submit list of properties of the principal borrowers upon which the petitioner bank submitted an affidavit stating therein that the judgment- debtors principal borrowers are not possessing the property from which the decretal amount can be recovered. To counter, learned counsel Shri B. V. Thanvi, appearing on behalf of the principal borrowers, submits that such affidavit has been filed by the decree-holder petitioner but the counter affidavit has not been filed by the principal borrowers before the executing court. The facts remain are that for the money decree of 1992 for a secured amount and for which final decree was passed by the court in the year 1994, no amount is recovered even in 11 years by the petitioner bank. The fact remains is that there is no dispute with respect to the entitlement of the money of the decree-holder petitioner and liability of the both the sets of the judgments- debtors. No petition can be kept pending by this court for indefinite period if this court decided not to reject the petition. ;