IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SECOND DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V AFZULPURKAR CIVIL REVISION PETITION No.4258 of 2009 AND CIVIL REVISION PETITION M.P.No.53 of 2010 Between: P.Rami Reddy …Petitioner AND Dupakuntala Krishna Murthy …Respondent The Court made the following: THE HON'BLE SRI JUSTICE VILAS V AFZULPURKAR CIVIL REVISION PETITION No.4258 of 2009 AND CIVIL REVISION PETITION M.P.NO.53 OF 2010 ORDER: At the stage of hearing of miscellaneous petition No.53 of 2010 seeking vacation of stay, with the consent of both the learned counsel, I heard the main Civil Revision Petition itself and the same is being disposed of. This Civil Revision Petition is directed against the order of attachment passed by the Principal Junior Civil Judge, Ananthapur (‘executing Court’, for brevity) against the petitioner who is judgment debtor No.2. The decree holder who is the ﬁrst respondent herein, obtained decree in O.S.No.137 of 2006 dated 14.09.2006, whereunder, defendants were jointly and severally made liable to pay Rs.59,783/- together with interest at the rate of 6% per annum on the principle amount from the date of suit i.e. 15.12.2005, till realization. The said decree was put to execution by the ﬁrst respondent herein by ﬁrst proceeding against judgment debtor No.1 and obtained attachment of his retirement benefits. However, the ﬁrst respondent did not pay batta for issuing of the said attachment order and ultimately, the said Execution Petition No.602 of 2007 ﬁled against judgment debtor No.1 was dismissed. Subsequently, the ﬁrst respondent herein ﬁled present Execution Petition No.524 of 2008 against judgment Debtor No.2 – the revision petitioner herein and sought attachment of his salary at the rate of Rs.5,000/- per month. The said order of the executing Court attaching the salary of the revision petitioner to the extent of Rs.3,000/- per month is questioned in this Revision Petition. The principal contention raised by the learned counsel for the petitioner is that the ﬁrst respondent, having proceeded against judgment debtor No.1 has not carried the same to its logical end and after leaving the execution proceedings midway, has ﬁled the present execution proceedings against judgment debtor No.2 i.e. the revision petitioner herein. Learned counsel for the petitioner had placed reliance upon a decision of this court in G.Laxmaiah Vs. State Bank of Hyderabad, Madanapuram Branch and another[1]. Learned counsel for the respondent / decree holder, on the other hand, submits that the earlier Execution Petition ﬁled against judgment debtor No.1 did not fructify into a valid attachment order as the batta was not paid and the said Execution Petition was dismissed for default for non payment of batta. He also states that judgment debtor No.1 is said to be owing moneys to various other creditors who have ﬁled similar execution proceedings against him and as such, the decree holder has ﬁled the present Execution Petition No.524 of 2008 and obtained attachment of salary of revision petitioner to the extent of Rs.3,000/- per month. The judgment of this Court relied upon by the learned counsel for the petitioner is sought to be distinguished on the ground that the facts of that case and the present case are entirely different. This Court, while admitting the revision petition, had granted interim stay of the impugned order on prima facie satisfaction that the present case is covered by G.Laxmaiah (supra). I have considered the contentions on either side. So far as right of the decree holder to proceed against the judgment debtors in the event of joint and several decrees is not in serious dispute or controversy. The ﬁrst respondent / decree holder, therefore, has his own choice to proceed against either of the judgment debtors. However, the only contention raised is that the ﬁrst respondent, having proceeded against the judgment debtor No.1, cannot abandon the said execution proceedings and proceed against judgment debtor No.2 by ﬁling a fresh Execution Petition. As mentioned above, reliance has been placed upon paragraph 13 of the G.Laxmaiah (supra) and it is contended that till the execution proceedings against one of the judgment debtors launched by the decree holder comes to a legal or logical end, he cannot proceed against the other judgment debtor as it amounts to harassing the other judgment debtor. The facts in the G.Laxmaiah (supra) clearly show that when the decree holder therein had ﬁled execution proceedings against the principal borrower, there was an agreement between the decree holder as well as the principal borrower and part satisfaction memo was recorded by the executing Court, which is extracted in para 10 of the G.Laxmaiah (supra). The said part satisfaction of the decree was held to be in the nature of a subsequent agreement between the decree holder and the ﬁrst judgment debtor, which in turn amounts to variation of the original terms of contract. The situation, therefore, is akin to discharge of surety under Section 133 of the Contract Act, 1872, on account of the variation of the terms of contract. This Court had very pointedly observed in para 10 of G.Laxmaiah (supra) as follows: “…Once the E.P.No.30 of 2001 ﬁled by the 1st respondent, against the 2nd respondent and the petition was closed with an order, in terms, indicated above, the nature of mutual rights and obligation of the parties, vis-a- vis those contained in the decree in the suit, stand altered. A new set of rights and obligations have come into existence. The petitioner was not a party to the said arrangement.” It is in those circumstances that this Court held that the second judgment debtor cannot be proceeded against, when there was a default committed by the ﬁrst judgment debtor in terms of the part satisfaction agreement recorded by the Court. In the present case, no such situation exists and the ﬁrst respondent / decree holder, though had proceeded against the ﬁrst judgment debtor, has abandoned the same and the decree, as of now, stands executable jointly and severally against both the judgment debtors. The said fact situation being completely diﬀerent from G.Laxmaiah (supra), the contention of the learned counsel for the petitioner that G.Laxmaiah (supra) covers the present case cannot be accepted. In view of the same, the impugned order of the executing Court cannot be faulted on any ground. The Civil Revision Petition, therefore, is devoid of merits and is accordingly dismissed without any order as to costs. In the light of the disposal of the main Civil Revision Petition itself, no further orders need be passed in C.R.P.M.P.No.53 of 2010, which is accordingly closed. ______________________________ VILAS V AFZULPURKAR, J March 02, 2010 Bvv [1] 2005 (3) ALT 539