HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH CIVIL REVISION PETITION NO. 4285 OF 2010 Friday, the Twenty Third day of September, Two Thousand and Eleven Between Poda Subba Rao Petitioner AND M/s.Margadarsi Chit Fund Ltd., Rep. by its Manager, Arundalpet, Guntur, Guntur Dist. and others Respondents ORDER: The petitioner is the judgment debtor No.7. The first respondent herein is the decree holder, who obtained a decree in OS No. 28 of 2007 for the recovery of a sum of Rs.11,50,693/-. As the entire decreetal amount could not be realized from the judgment debtors, EP No. 237 of 2009 was filed in the suit OS No. 28 of 2007 on the file of the learned III Addl. Dist. Judge, Guntur, for sale and attachment of the property of the petitioner herein, as shown in the schedule, which was already attached in I.A. No. 219 of 2007 under Order 21 Rule 66 CPC for sale in open auction under Order 21 Rule 64 to realize the E.P. warrant amount. The petitioner herein objected for the sale by filing counter stating that the petitioner is one of the co-sureties along with other sureties. It is stated that the E.P. is filed for the sale of the property of the petitioner for the realization of the total debt amount whereas in respect of other co-sureties, who stood security for the said debt, without taking steps against them, filing the E.P. against the petitioner herein is with an ulterior motive. It is further stated that the principal borrower withdrew the debt amount of Rs.25.00 lakhs and in fact the decree holder earlier filed E.P. No. 265 of 2009 against the judgment debtor No.4 seeking to attach immovable property and the respondent received a sum of Rs.3.00 lakhs and part satisfaction memo was filed and accordingly, the E.P. was dismissed by order dated 27.9.2010. Thus it is stated that without proceedings against the sureties, filing of the said E.P. is not bonafide and requested to dismiss the E.P. It appears that arguments were also advanced stating that the said property was already mortgaged in favour of LICHFL and, therefore, the said property cannot be sold and the executing court held that any sale of the said property will be subjected to the mortgage to LICHFL only and the sale will also be subject to any prior liability. Accordingly, the said objection was overruled and the E.P. was posted for settlement of terms. Aggrieved by the said rejection of the objection by order dated 5.8.2010 the present Civil Revision Petition is filed. This court while issuing notice before admission, granted interim stay subject to the condition of the petitioner depositing Rs.3.00 lakhs within four weeks therefrom. It is stated that the said sum of Rs.3.00 lakhs was paid. Heard the counsel on either side. It is stated that out of the total decreetal amount of Rs.11,50,693/-, earlier E.P. No. 237 of 2009 was filed for recovery of a sum of Rs.15,23,301.00 by attachment and sale of immovable property of the judgment debtor Nos.4, 5, 7 and 8 and in the said E.P, the judgment debtor No.4 paid sum of Rs.3.00 lakhs, judgment debtor No.6 paid a sum of Rs.1,50,000/-, judgment debtor No.8 paid a sum of Rs.2.00 lakhs. Thus the decree holder filed part satisfaction memo to the effect of receipt of a sum of Rs.9,50,000/- in the said E.P. No. 265 of 2009. Thereafter, the decree holder filed the present E.P. for the attachment and sale of property of the judgment debtor No.7, petitioner herein. It is stated that the petitioner herein also paid a sum of Rs.3.00 lakhs pursuant to the conditional order passed by this court. It is stated that a sum of Rs.12,50,000/- was paid by the judgment debtors so far leaving a balance of Rs.1,12,803/- alone. Learned counsel for the petitioner submits that under Sec.139 of the Contract Act, the decree holder acted inconsistently with the rights of the sureties with regard to the duties of the sureties and by reason of the said action of the decree holder against the principal debtor, the sureties stand discharged. Learned counsel for the petitioner further submits that the decree holder having filed E.P. against some of the sureties and having filed Memo to record part satisfaction, after dismissal of the said E.P., is precluded from proceeding against the other sureties and the present petitioner. He further submitted that under Sec. 141 of the Contract Act, the sureties are entitled for apportionment of their liabilities. I am of the opinion that neither Sec. 139 nor Sec.141 of the Contract Act are applicable in the instant case, as the decree holder has not acted against the liability of the principal debtor or against the sureties with regard to their liability to pay the decreetal amount. The surety is not for a specific amount relating to their liability. The surety is for payment of the entire amount payable by the principal debtor. Therefore, the suit was decreed against all the defendants making them liable to pay the decreetal amount jointly and severally. Merely because, the E.P. filed for attachment of the immovable property, it cannot be said that the decree holder is precluded from filing successive E.Ps. for realization of the balance decreetal amount. The earlier E.P. was filed for attachment and sale of immovable property but whereas the present E.P. is filed for sale of the already attached immovable property. Therefore, I am of the opinion that the objection raised by the petitioner was rightly rejected by the court below. The Civil Revision Petition accordingly fails and is dismissed. No order as to costs. It is needless to say that the decree holder is at liberty to withdraw the amount already deposited by the petitioner pursuant to the interim order passed by this court, without furnishing any security. ___________________ Justice V.Eswaraiah September 23, 2011 MAS