Patna High Court - OrdersRajendra Prasad Singh vs Punjab National Bank & Ors on 23 January, 2012IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.17032 of 2011
                                   Rajendra Prasad Singh
                                            Versus
                                Punjab National Bank & Ors
                               ----------------------------------

                                             ORDER

13.   23.01.20121.        I have already heard the learned counsel Mr.

                   Shashi Jha on behalf of the petitioner and Mr.

                   Siddhendra      Narayan    Singh     on     behalf    of   the

                   respondents.2.        The    defendant    No.1        judgment      debtor

                   petitioner has filed this application underArticle 227of

                   the Constitution of India against the order dated

                   31.1.2008 passed by the Subordinate Judge-1st, Bihar

                   Sharif, Nalanda in Execution Case No. 5 of 1997

                   whereby the learned court below directed the office to

                   issue the proclamation of sale of the properties

                   mentioned in the execution petition.3.        The    learned   counsel    for    the     petitioner

                   submitted that only 4.5 decimal of land is the

                   mortgage property and, therefore, the bank could not

                   have prayed for selling the property more than the said

                   mortgaged property. The learned executing court also

                   did not consider that the said area of land mortgaged

                   is sufficient for realization of the amount due to be

                   paid by the present petitioner but the bank has also

                   included the lands of the guarantor and the executing

                   court has by the impugned order directed to sell the2said properties. The learned counsel further submitted

that the executing court be directed to sell the

property measuring 4.5 decimal and adjust the sale

amount and if not satisfied then the executing court

may proceed to sell other properties.4.        The learned counsel for the respondents

vehemently opposed the prayer of the learned counsel

for the petitioner and submitted that this question was

considered by the court below and the learned court

below found that the order was passed in 2003 giving

option to the petitioner to sell his properties and satisfy

the loan i.e. the decretal amount within three moths

but the petitioner did not sell the property nor he took

any steps for satisfying the decretal amount and,

therefore, now at this stage after lapse of seven years

he cannot be permitted to resist the realization of the

public money.5.        From    perusal   of   he   impugned     order   it

appears that the learned court below found that the

Sub Judge by terms of order dated 23.9.2003 granted

option to the present petitioner to sell his properties

and satisfy the loan amount within three months. This

petitioner did not sell nor took any steps to satisfy the

loan amount. It appears that a direction was given that

if he will not satisfy the loan within the said period the

judgment debtor and the guarantors would be liable

for realisation of the loan till fully satisfied. Admittedly,3the said order still holds good. The objection of the

petitioner to the effect that the bank should proceed

against the property of the petitioner only is concerned

has got no leg to stand because it is settled principles

of law that the loanee and guarantors are jointly and

severally liable to repay the loan amount. Further in

the present case, the guarantors are not moving or

objecting before the executing court to the effect that

their property should not be sold prior to or along with

the property of the present petitioner. It is the

petitioner who is objecting that the property of

guarantors should not be sold and the petitioner's

property be sold and the loan amount be satisfied.

Before this Court the learned counsel for the petitioner

categorically admitted that the petitioner is not able to

sell the property. In view of the above facts and

circumstances, it is admitted fact that there is a decree

in favour of the bank. It is admitted that the petitioner

is liable to pay the loan amount along with the interest.

For realization of the loan amount with interest the

bank has filed the executing case. The petitioner was

allowed sufficient time to satisfy the decree but he

failed to satisfy and therefore the executing court

proceeded ahead by giving direction for proclamation

to sell.6.         In such circumstances, the present petitioner

cannot have any reasonable objection to resist the4executing of the decree on the ground of first his

       property should be sold. The learned court below

       considering all these aspects of the matter has passed

       the impugned order. Therefore, it cannot be said that

       the impugned order passed by the executing court is

       without   jurisdiction   or   that    the   executing        court

       exercised the jurisdiction in the manner not permitted

       by any law or that the impugned order has been

       passed irrationally. Therefore, I find no reason to

       interfere with the impugned order in exercise of

       supervisory   jurisdiction    underArticle   227of    the

       Constitution of India. Thus, this writ application is

       dismissed with cost of Rs.10,000/-. The bank may

       realize the cost through process of law.S.S.                                        (Mungeshwar Sahoo, J.)