HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.299 of 2009 (M/S) Suresh Chandar Tiwari aged about 42 S/o late Sri Krishnanand Tiwari R/o Shop No.1 Gadi Parao Mallital, Nainital District Nainital .……… Petitioner Versus Civil Judge (S.D.), Almora District Almora & another …… Respondents Mr. S. S. Bhandari, Advocate for the petitioner. Mr. Lalit Sharma, Brief Holder for the State. Mr. A. K. Joshi, for respondent no.2 – Nainital Bank. Hon’ble J.C.S. Rawat, J. With the consent of the learned counsel for the parties, this petition is being disposed of finally today at the motion hearing stage without admitting it for hearing. This petition under Article 226 of the Constitution of India has been filed for the following reliefs:- (a) Issue a writ, order or direction in the nature of certiorari for quashing the impugned summoning order dated 10.02.2009 issued by the respondent no.1 in connection with the execution of decree dated 27.07.1998 in Civil Case No.101 of 1998. (b) Issue a writ, order or direction in the nature of mandamus directing the respondent no.1 to stay the operation and effect of the order dated 10.02.2009 passed by the executing court in connection with the execution of the decree dated 27.07.1998 in Civil Case No.101 of 1998 till the pendency of this writ petition before this Hon’ble Court. (c) Any other order, direction or relief, which this Hon’ble Court may deem fit and proper in the circumstances of the case. Brief facts of the case are that a civil suit was filed by the Nainital Bank (respondent no.2) for recovery of loan against the borrower as well as against guarantor. Father of the petitioner i.e. K. N. Tiwari S/o Narrotum was a guarantor. During the course of hearing of the said suit, the suit was abated against Shri Krishnanand Tiwari (father of the present petitioner) and as such no decree was passed against the father of the petitioner. The trial court vide its judgment and order dated 20.07.1998 decreed the suit of the plaintiff/Bank against the defendant Nos.1, 2 & 4 for recovery of Rs.98,991.71 paise and they were also directed to pay 18 % (percent) interest to the plaintiff. It has clearly been held in the body of the judgment while dealing with issue No.10 that the suit was abated against the defendant no.3 – K. N. Tiwari (father of the petitioner). Thereafter, the Execution Court has issued an attachment warrant against the petitioner against whom the suit had not been decreed under Order 21 Rule 54 CPC pursuant to the execution application filed by the decree holder. I have heard the learned counsel for the parties and perused the record. Learned counsel for the petitioner contended that the trial court has held while dealing with issue No.10 of the judgment and order dated 20.07.1998 that the case against K. N. Tiwari (father of the present petitioner) has been abated pursuant to order dated 11.11.1997. As such, no further proceedings can be initiated against the son of K. N. Tiwari or his legal representatives. Learned counsel for the respondent no.2 (Nainital Bank) could not justify the order of the learned Civil Judge while issuing warrant against the present petitioner under Order 21 Rule 54 CPC. As there is no decree against the father of the present petitioner, hence no proceedings can be initiated against the present petitioner for recovery of loan in which the father of the petitioner was a guarantor. The petition is allowed. The impugned warrant of attachment and order dated 10.02.2009 passed by the Civil Judge (S.D.), Almora, District Almora is quashed so far as the present petitioner is concerned. However, it is made clear that the trial court is at liberty to proceed against other defendants or judgment debtor. No order as to costs. (J.C.S. Rawat, J.) Dated 02nd March, 2009 LSR