IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 14TH AUGUST 2008 / 23RD SRAVANA 1930 WP(C).No. 24651 of 2008(I) -------------------------- AGAINST THE ORDER IN EP 280/2003 IN OS.300/2002 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER: ------------ NIYAS S/O ABDUL RAHIMAN, MURITHARA HOUSE, CHENTHRAPPINNI, KODUNGALLUR, REP. BY ITS P.A.H. ABDUL NAZAR. BY ADV. SRI.K.A.SREEJITH RESPONDENTS: ------------- 1. THILAKAN, S/O KUMARAN, PANAKKAL HOUSE, ENGADIYUR, 2. AMBUCHIYA FINANCE (P) LTD., MANAVALASSERY VILLAGE, IRINJALAKUDA, THRISSUR. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.24651 of 2008 ------------------------------- Dated this the 14th August, 2008. J U D G M E N T This petition is filed under Article 227 of the Constitution of India challenging Ext.P3 order passed by Sub Court, Irinjalakuda, in E.P.No.280 of 2003, on 18.1.2008. Under Ext.P3 order, learned Sub Judge overruling the objections raised by the petitioner, directed the sale of the property after proclamation. Though that order was passed on 18.1.2008 directing sale of the property on 17.3.2008, petitioner is approaching this Court under Article 227 of the Constitution of India at this belated hour. 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel for petitioner is that petitioner is only a surety and the decree holder is not proceeding against the property of the principal debtor and W.P.(C) No.24651 of 2008 2 principal debtor is having sufficient property, and, therefore, the property of the petitioner may be proceeded only after exhausting the remedy against the principal debtor. Learned counsel also argued that there is collusion between the judgment debtor and the decree holder. 4. On hearing the learned counsel, I do not find any illegality or irregularity in Ext.P3 order. Petitioner being one of the judgment debtors who is jointly and severally liable for the decree debt is bound to pay the decree debt. Being a surety, he is not entitled to claim that decree holder shall proceed against the principal debtor first. If petitioner is compelled to pay the decree debt on behalf of the principal debtor, as provided under Section 140 of Indian Contract Act, petitioner is entitled to realise the amount so paid from the principal debtor. It is more so, because even according to the petitioner, first judgment debtor has sufficient properties to be proceeded with. Writ petition is accordingly dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.