Full Judgment
L. Narasimha Reddy, J.
1. The petitioner was the Managing Director of a Company, by name, M/s. Ekashila Builders Private Limited, Nizamabad (for short 'the Company'). That company raised loan of Rs. 1,50,000/- from the respondent, and the same was secured by mortgage of a flat, at Pragathinagar, Nizamabad. Alleging that the Company did not pay the amount, the respondent filed O.S. No. 115 of 1999 in the Court of Senior Civil Judge, Nizamabad, for a mortgage decree. The trial Court passed a preliminary decree on 10-03-2000. This was followed by a final decree on 13-12-2000, paving the way for sale of the mortgaged property.
2. The respondent filed E.P. No. 6 of 2003 against the petitioner, individually. Through its order dated 03-02-2000, the Executing Court attached a portion of the salary of the petitioner, to the extent of Rs. 3,000/- per month. Three years thereafter, the petitioner filed E.A. No. 52 of 2006, with a prayer to raise the attachment of his salary. The E.A. was opposed by the respondent. The same was dismissed by the Executing Court, on 17-12-2007. Hence, this revision.
3. Sri K. Venu Madhav, learned Counsel for the petitioner, submits that once the respondent had obtained a final decree in the mortgage suit, it was totally impermissible for him to file execution petition. He places reliance upon the judgment of the Supreme Court in Union Bank of India v. Manku Narayana (1) : AIR 1987 SC 1078. He further submits that the Executing Court ought not to have entertained the E.P. against an individual, when the decree was against a company.
4. Sri J. Kanakaiah, learned Counsel for the respondent, on the other hand, submits that being the Managing Director of the Company, the petitioner was also liable personally to satisfy the decree. He contends that the petitioner did not raise any objection for attachment of his salary for a period of three years, and it is not open to him to raise objection at this stage.
5. The suit filed by the respondent was against a company. Initially, a preliminary decree and thereafter a final decree were passed. In both of them, the company was shown as the judgment-debtor. The execution petition, even if otherwise permissible, ought to have been filed against the company itself. The question as to whether the petitioner continued to be the Managing Director, and whether he was liable to be proceeded against, ought to have been considered. The trial Court was not at all justified in entertaining on E.P. filed against the petitioner, straightaway.
6. Secondly, in a suit for mortgage, the necessity to file E.P. would arise, if only the sale proceeds of the mortgaged property, which is sold in a final decree, are not sufficient, to meet the suit claim. In Union Bank of India v. Manku Narayana (supra), the Supreme Court held that a decree-holder in a mortgage suit has to proceed against the mortgaged property, and then to resort to other steps, in case the sale does not result in satisfaction of the decree. The principle laid down in that case applies to the facts of the present case.
7. Had the petitioner raised the objection at the initial stage, he would not have suffered the attachment and appropriation of his salary. He kept quiet for three years. It is represented that subsequent to the filing of E.A., the deducted amount is being deposited to the credit of the E.P. Even now, the respondent can proceed against the mortgaged property, on the basis of the final decree.
8. For the foregoing reasons, the C.R.P. is allowed, and the order under revision is set aside. It is directed that,
(a) the respondent shall take steps to bring the mortgaged property to sale, within six months from today;
(b) in case, the property fetches the decretal amount, it shall be under obligation to refund the amount received by him, through the attachment of the salary of the petitioner. If, on the other hand, the sale becomes impossible, or it does not fetch the decretal amount, he shall not be under obligation to pay such amount; and
(c) the petitioner shall be entitled to withdraw the amount, that is deposited to the credit of E.P., representing the amount deducted from his salary, subsequent to the filing of the E.P.
9. There shall be no order as to costs.