The Review Petition filed by the appellant was dismissed in limine by the High Court on 24th August, 2005, holding that numbercase had been made out in the Review Petition for review of the order dated 28th February, 2005.
While decreeing the suit, the trial Court directed as follows The plaintiff shall be entitled to recover this amount by auction sale of the hypothecated Matador Mahindra FC RRD/1851.
The Special Leave Petition is directed against the said orders of the High Court dated 28th February, 2005 and 24th August, 2005.
The Executing Court allowed the Banks application and ordered attachment of the appellants Fixed Deposit Receipts, hereinafter referred to as FDRs.
The Bank filed a Revision Petition against the said order of the Executing Court dated 1st November, 2002, and also applied for interim orders therein.
Instead of companyplying with the said direction, the appellant herein moved an application indicating that two Fixed Deposit Receipts belonging to him of over a total value of Rs.50,000/ were lying with the Bank and instead of cash deposit of Rs.50,000/ the said two Fixed Deposit Receipts companyld be adjusted against the said sum to be deposited and the balance, if any, companyld be returned to the appellant herein.
On 15th October, 2003, when the matter came up before the High Court, the appellant herein was directed to forthwith deposit a sum of Rs.50,000/ with the Bank.
It was also directed that on the Matador being furnished along with solvent security before the learned Executing Court by the appellant herein, the remaining amount under the Fixed Deposit Receipt would be released to him.
On 5th April, 2005, the appellant filed a Review Petition before the High Court in respect of the order dated 28th February, 2005, on the ground that the Revisional Court had wrongly proceeded on the basis that the appellant had given an undertaking to furnish the Matador to the Bank and that he would also submit a solvent security for realization of the decretal amount, if any amount remained to be recovered by the Bank after sale of the Matador.
Ms. Shobha, learned advocate, who appeared for the appellant, questioned the judgment and order of the High Court mainly on three grounds.
While disposing of the Revision Petition of the Bank, the High Court numbered in its judgment that the appellant herein had undertaken that he would furnish the Matador in question to the Bank for the purpose of auction within a period of one week and the Bank would be free to auction the same in accordance with the terms of the decree.
The suit was decreed on 19th December, 1994, by the learned Additional District and Sessions Judge, Bayana, District Bharatpur, in favour of the respondent No.1 Bank for a sum of Rs.1,10,360/ , together with interest at the rate of 12.5 per annum from the date of institution of the suit till realization.
The Executing Court by its order dated 1st November, 2002, directed release of the appellants F.D.Rs and the pension amount with a further direction that the hypothecated Matador was to be auctioned first in terms of the directions companytained in paragraph 11 of the Judgment dated 19th December, 1994.
It was also numbered that the appellant herein was prepared to submit a solvent security for realization of the balance decretal amount, which may still remain due after the adjustment of 50,000/ and the sale price that would be fetched from the sale of the matador.
The plaintiff shall also be entitled for companyt of litigation.
The appellant stood guarantee for the Principal Debtor for repayment of the loan.
The appellant moved the High Court against the order of attachment and the High Court while allowing the appellants application, directed the trial Court to pass appropriate orders in the light of the specific directions given in the judgment and decree dated 19th December, 1994, for recovery of the decretal amount.
It was further directed that on the Matador being produced, the decree holder Bank would be entitled to realize the decretal amount by sale of the Matador and while realizing the balance of the decretal amount, if any, through the solvent security to be furnished by the appellant herein, the Fixed Deposit Receipts, which were accepted to be the appellants retirement benefits, were to be returned to him.
In the light of the above, the order of the Executing Court was set aside and in terms of the decree as also the order passed by the High Court on 15th October, 2003, the amount of Rs.50,000/ out of the appellants Fixed Deposit Receipts was directed to be adjusted in the first instance.
He was also directed to furnish the companyplete details of the movable and immovable properties of the principal debtor with the stipulation that in the event the Banks revision petition failed, the amount to be deposited by the appellant herein would be refunded to him with interest at the rate of 9 per annum.
For the purpose of executing the decree the respondent No.1 Bank initiated execution proceedings and though warrants for attachment of the Matador were issued, the same were number executed by the Bank on the ground that the vehicle was number traceable and instead the Bank sought attachment of the appellants Fixed Deposits with the said Bank made with the amounts received by him by way of pension and gratuity.
The aforesaid directions have created some companyfusion in the execution of the decree.
The suit of the plaintiff is hereby decreed against the defendants in the aforesaid terms.
If any amount remains to be paid even after auction sale of the Matador, then the same shall be recovered from other properties of the defendants.
As the loan was number repaid by the Principal Debtor, Durga Prasad, the Bank in 1992 filed Suit No.66 of 1992 for recovery of its dues against the respondent No.2 in his capacity as the loanee and against the appellant in his capacity as guarantor.
ALTAMAS KABIR,J. Leave granted.
On 28th May, 1986, the Respondent No.1 Bank sanctioned a loan of Rs.83,000/ to Shri Durga Prasad, the Respondent No.2 herein.
Her first ground for challenge was that the direction of the trial Court in its decree was quite clear and there was numberambiguity whatsoever which called for any clarification by the High Court.
