IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 WP(C).No. 21113 of 2008(L) -------------------------------------- AGAINST THE ORDER DATED / / IN EP.6/08 IN OS.176/2007 of PRL.MUNSIFF, KASARAGOD .................... PETITIONER : ------------------- T.KAMALAKSHAN, REGIONAL AI CENTRE, NEAR RAILWAY STATION ROAD, KASARGODE KARBALA VILLAGE, KASARAGODE P.O. BY ADV. SRI.K.I.SAGEER RESPONDENTS : ---------------------- 1. STATE BANK OF TRAVANCORE, KASARAGODE BRANCH, REPRESENTED BY ITS BRANCH MANAGER. 2. DR.A.G.RAVEEDRAN, ASSISTANT PROJECT OFFICER, REGIONAL ARTIFICIAL INSEMINATION CENTRE, ANIMAL HUSBANDRY DEPARTMENT, KATTAPPANA P.O., IDUKKI, RESIDING AT "SREEVALSAM", PAKALAMATTOM P.O KURUVILANGAD, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV.SRI.SAJI VARGHESE, SC - SBT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: pac M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO.21113 OF 2008 ------------------------------------------ Dated this the 18th day of July, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India by second judgment debtor, a surety to the first judgment debtor, in O.S. 176 of 2007 on the file of Munsiff Court, Kasargod. A decree for realization of Rs.85,585/- with interest was passed against second respondent principal judgment debtor and second respondent surety on 30.7.2007. That judgment was passed after the judgment debtors filed a written statement and admitted the plaint claim. E.P. 6 of 2008 was filed by the first respondent decree holder for arrest and detention of the judgment debtors. But by that time, the principal debtor, the officer under whom petitioner was working as attender, was transferred to Kattappana of Idukki. The grievance of the petitioner is that without proceeding against the principal judgment debtor, the decree holder is proceeding against the petitioner the second judgment debtor, who was only the attender of the first judgment debtor. Though legally both judgment debtors are jointly and severally liable and a surety is WPC21113/08 2 not entitled to contend that decree holder is liable to realize the amount from principal debtor alone and only if it is not possible he is entitled to proceed against the second respondent, the argument can only be rejected. Being a joint and several liability decree holder can proceed against both or against one. Surety cannot insist that remedy is against principal debtor only. From the facts and circumstances of the case it is clear that petitioner, an attender in the office of the second respondent, the principal judgment debtor Decree holder is now not proceeding against first judgment debtor who was transferred from Kasargod. But on that ground execution petition cannot be quashed as sought for. If the petitioner files an application for payment of the decree debt in instalments executing court shall consider the application and permit him to pay the decree debt taking into consideration the salary of the petitioner as well as the amount if any being recovered from his salary ,for repayment of other existing debts. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-