STATE BANK OF INDIA versus INDEXPORT REGISTERED AND ORS.

STATE BANK OF INDIA versus INDEXPORT REGISTERED AND ORS.

Where a decree is both a personal money decree and a mortgage decree, not limited by its terms, the decree-holder may execute it against guarantor without first proceeding against mortgaged property. The liability of a guarantor is co-extensive and not contingent upon exhaustion of remedies against mortgaged property unless the decree so provides.

Parties
Appellant: State Bank of India; Respondent: Indexport Registered; Respondent: Janeshwar Kumar Jain; Respondent: Savitiri Devi; Respondent: Ram Kishan
Jurisdiction
India
Judgment Date
30 April 1992
Procedural Posture
Civil Appeal / Final Judgment of Supreme Court on Appeal From Delhi High Court
Outcome
Appeal allowed
Legal Topics
Execution of Composite Decree, Surety Liability, Money Decrees, Mortgage Decrees
Civil Procedure Contract Law Execution of Composite Decree Surety Liability Money Decrees Mortgage Decrees

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Parties

State Bank of India

Appellant

Indexport Registered

Respondent

Janeshwar Kumar Jain

Respondent

Savitiri Devi

Respondent

Ram Kishan

Respondent

Procedural Posture

Civil Appeal / Final Judgment of Supreme Court on Appeal From Delhi High Court

Legal Issues

  1. 1 Whether decree-holder can execute composite decree against guarantor without first proceeding against mortgaged property
  2. 2 Whether guarantor can be sued without suing principal debtor
  3. 3 Whether executing court can go beyond the decree

Ratio Decidendi

Where a decree is both a personal money decree and a mortgage decree, not limited by its terms, the decree-holder may execute it against guarantor without first proceeding against mortgaged property. The liability of a guarantor is co-extensive and not contingent upon exhaustion of remedies against mortgaged property unless the decree so provides.

Court Disposition

Appeal allowed

Orders

  • Orders of High Court dated 23.5.1990 and Additional District Judge dated 5.5.1989 are set aside.
  • Decree-holder bank entitled to proceed in execution against guarantor (judgment-debtor No. 4) for the decretal amount.