This page is retyped and replaced V.C.O. dtd.30.11judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/144871/1/... · c/o pegasus aviation finance company ... kingfisher airlines

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 29TH DAY OF APRIL, 2016

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

W.P.NO.32399/2015 C/W W.P.NOS.32400/2015, 32402/2015,

32403/2015, 32404/2015, 32401/2015 & 32405/2015 (GM-CPC) W.P.NO.32399/2015:

BETWEEN:

PAFCO 2916 INC. C/O PEGASUS AVIATION

FINANCE COMPANY HAVING ITS PRINCIPAL PLACE OF BUSINESS AT FOUR EMBARCADERO CENTER 35TH FLOOR, SAN FRANCISCO

CA 94111, REP. BY ITS POWER OF ATTORNEY HOLDER, MS. SNEHA SUBHASH RAO

... PETITIONER

(BY SRI.KEVIC SETALVOD, SR. COUNSEL A/W SRI. SRIRANGA S, ADV,)

AND:

KINGFISHER AIRLINES LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES

ACT, 1956, HAVING ITS REGISTERED OFFICE AT LEVEL 12, U.B. TOWERS

NO.24, VITTAL MALLYA ROAD BENGALURU-560 001 REP. HEREIN BY ITS DIRECTOR

... RESPONDENT (BY SRI.RAJESH S.V, ADVOCATE)

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE

CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED

ORDER DATED 29.4.2015 VIDE ANNEXURE-L PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, DIRECTING THE PETITIONER TO

AMEND THE EXECUTION PETITION IN EXECUTION CASE NO. 1267/2014 AND 1274/2014 SO THAT, THE CLAIM IN BOTH PETITIONS SHOULD NOT EXCEED THE AMOUNT DUE UNDER THE TRANSACTION

IN WHICH IT HAS OBTAINED TWO SEPARATE DECREES AND DIRECT THE TRIAL COURT TO DISPOSE OF THE EXECUTION PETITION, IN

ACCORDANCE WITH LAW.

R

This page is retyped and replaced V.C.O. dtd.30.11.2016

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W.P.NO.32400/2015:

BETWEEN:

PAFCO 2919 INC. C/O PEGASUS AVIATION

FINANCE COMPANY HAVING ITS PRINCIPAL PLACE

OF BUSINESS AT FOUR EMBARCADERO CENTER 35TH FLOOR, SAN FRANCISCO

CA 94111, REP. BY ITS POWER OF ATTORNEY HOLDER, MS. SNEHA SUBHASH RAO ... PETITIONER


AND:

KINGFISHER AIRLINES LIMITED

A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED

OFFICE AT LEVEL 12, U.B. TOWERS NO.24, VITTAL MALLYA ROAD BENGALURU-560 001

REP. HEREIN BY ITS DIRECTOR ... RESPONDENT

(BY SRI.RAJESH S.V, ADVOCATE)

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE

CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 29.4.2015 VIDE ANNEXURE-L PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, IN EXECUTION CASE NO. 1268/2014

AND 1276/2014 SO THAT, THE CLAIM IN BOTH PETITIONS SHOULD NOT EXCEED THE AMOUNT DUE UNDER THE TRANSACTION IN

WHICH IT HAS OBTAINED TWO SEPARATE DECREES AND DIRECT THE TRIAL COURT TO DISPOSE OF THE EXECUTION PETITION, IN ACCORDANCE WITH LAW.

W.P.NO.32402/2015:

BETWEEN:

AWAS IRELAND LEASING THREE LIMITED HAVING ITS PRINCIPAL PLACE

OF BUSINESS RIVERSIDE ONE, SIR JOHN ROGERSON’S

QUAY, DUBLIN 2, IRELAND REP. BY ITS POWER OF ATTORNEY HOLDER, MS. SNEHA SUBHASH RAO

... PETITIONER


AND:

UNITED BREWERIES (HOLDINGS)


3

LIMITED, A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE

COMPANIES ACT, 1956, HAVING ITS REGISTERED



(BY SRI.SAJJAN POOVAYYA, SR. COUNSEL A/W SMT. SINDHU, ADV,)

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED

ORDER DATED 29.4.2015 VIDE ANNEXURE-K PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, AND RESTORE THE SAID

EXECUTION CASE TO FILE FOR DISPOSAL IN ACCORDANCE WITH LAW.

W.P.NO.32403/2015:

BETWEEN:

PAFCO 2916 INC. C/O PEGASUS AVIATION FINANCE COMPANY

HAVING ITS PRINCIPAL PLACE OF BUSINESS AT FOUR

EMBARCADERO CENTER 35TH FLOOR, SAN FRANCISCO CA 94111, REP. BY ITS POWER OF ATTORNEY

HOLDER, MS. SNEHA SUBHASH RAO ... PETITIONER

(BY SRI.KEVIC SETALVOD, SR. COUNSEL A/W SRI. SRIRANGA S, ADV.)

AND:

UNITED BREWERIES (HOLDINGS) LIMITED A COMPANY INCORPORATED UNDER

THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT LEVEL 12, U.B. TOWERS

NO.24, VITTAL MALLYA ROAD BENGALURU-560 001 REP. HEREIN BY ITS DIRECTOR

... RESPONDENT (BY SRI.SAJJAN POOVAYYA, SR. COUNSEL A/W SMT. SINDHU, ADV,)

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 29.4.2015 VIDE ANNEXURE-K PASSED BY THE XIX

ADDITIONAL CITY CIVIL JUDGE, DIRECTING THE PETITIONER TO AMEND THE EXECUTION PETITION IN EXECUTION CASE NO. 1274/2014 AND 1267/2014 SO THAT, THE CLAIM IN BOTH PETITIONS SHOULD NOT EXCEED THE AMOUNT DUE UNDER THE TRANSACTION IN WHICH IT HAS OBTAINED TWO SEPARATE DECREES AND DIRECT


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THE TRIAL COURT TO DISPOSE OF THE EXECUTION PETITION, IN ACCORDANCE WITH LAW.

W.P.NO.32404/2015:

BETWEEN:

AWAS IRELAND LEASING THREE LIMITED HAVING ITS PRINCIPAL PLACE OF BUSINESS RIVERSIDE ONE,

SIR JOHN ROGERSON’S QUAY, DUBLIN 2, IRELAND REP. BY ITS POWER OF ATTORNEY HOLDER, MS. SNEHA SUBHASH RAO

... PETITIONER


AND:

UNITED BREWERIES (HOLDINGS) LIMITED, A COMPANY INCORPORATED

UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED

OFFICE AT LEVEL 12, U.B. TOWERS NO.24, VITTAL MALLYA ROAD

BENGALURU-560 001 REP. HEREIN BY ITS DIRECTOR

... RESPONDENT

(BY SRI.SAJJAN POOVAYYA, SR. COUNSEL A/W SMT. SINDHU, ADV.,)

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 29.4.2015 VIDE ANNEXURE-K PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, AND RESTORE THE SAID EXECUTION CASE TO FILE FOR DISPOSAL IN ACCORDANCE WITH

LAW. W.P.NO.32405/2015:

BETWEEN:

PAFCO 2919 INC. C/O PEGASUS AVIATION FINANCE COMPANY

HAVING ITS PRINCIPAL PLACE OF BUSINESS AT FOUR

EMBARCADERO CENTER 35TH FLOOR, SAN FRANCISCO CA 94111, REP. BY ITS POWER OF ATTORNEY




5

AND:

UNITED BREWERIES (HOLDINGS) LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES

ACT, 1956, HAVING ITS REGISTERED OFFICE AT LEVEL 12, U.B. TOWERS NO.24, VITTAL MALLYA ROAD

BENGALURU-560 001 REP. HEREIN BY ITS DIRECTOR

... RESPONDENT (BY SRI.SAJJAN POOVAYYA, SR. COUNSEL A/W SMT. SINDHU, ADV,)

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED

ORDER DATED 29.4.2015 VIDE ANNEXURE-K PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, DIRECTING THE PETITIONER TO AMEND THE EXECUTION PETITION IN EXECUTION CASE NO.

1276/2014 AND 1268/2014 SO THAT, THE CLAIM IN BOTH PETITIONS SHOULD NOT EXCEED THE AMOUNT DUE UNDER THE TRANSACTION

IN WHICH IT HAS OBTAINED TWO SEPARATE DECREES AND DIRECT THE TRIAL COURT TO DISPOSE OF THE EXECUTION PETITION, IN ACCORDANCE WITH LAW. W.P.NO. 32401/2015:

BETWEEN:

J.B. 2443 INC.

C/O CORPORATION SERVICE COMPANY, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 2711, CENTERVILLE ROAD,

SUITE 400, WILMINGTON DELAWARE 19808 REP. BY ITS POWER OF ATTORNEY



AND:

UNITED BREWERIES (HOLDINGS) LIMITED, A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE

COMPANIES ACT, 1956, HAVING ITS REGISTERED



(BY SRI.SAJJAN POOVAYYA, SR. COUNSEL A/W SMT. SINDHU, ADV,)

THIS PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE


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THE IMPUGNED ORDER DATED 29.4.2015 ON I.A. II VIDE ANNEXURE-K PASSED BY THE XIX ADDITIONAL CITY CIVIL JUDGE, (CCH-18) AND RESTORE THE SAID EXECUTION CASE TO FILE FOR DISPOSAL IN ACCORDANCE WITH LAW.

THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

All these writ petitions relates to execution of

decrees obtained by the decree holder in the Court of

United Kingdom. Since common questions of fact and

law are involved, they are heard and disposed of by this

common order.

2. Facts in brief which has led to filing of these

writ petitions are as follows:

RE: W.P.Nos.32399/2015 & 32403/2015

Decree holders in these two writ petitions having

obtained judgment and decree against respondents –

judgment debtors on 13.12.2013 by High Court of

Justice, Queen’s Bench Division, Commercial Court,

Royal Court of Justice have filed two Execution petitions

namely, Execution Petition Nos.1267/2014 and

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1274/2014 before City Civil Court, Bengaluru. The

original judgment and decrees came to be modified

during the pendency of execution petitions. Hence,

applications for amendment came to be filed in these

two execution petitions seeking for amendment namely,

to amend the amounts mentioned in the respective

executive petitions. Applications for amendment of

executive petitions came to be opposed by both the

judgment debtors. At the time of hearing of these

amendment applications, Executing Court suo motu

raised the issue of maintainability of these execution

petitions i.e., Execution Petition Nos.1267/2014 and

1274/2014 since said judgment and decree passed

against Kingfisher Airlines Limited as well as United

Breweries (Holdings) Limited was one and the same.

After hearing the learned Advocates appearing for the

parties, Executing Court by impugned orders has

arrived at a conclusion that since the amount claimed

in both the Execution Petition Nos.1267/2014 and

1274/2014 are one and same and decree holder having

filed two Execution Petitions viz., 1268/2014 and

8

1276/2014 which relates to same transaction, decree

holder with an intention to recover double the decretal

amount, directed the decree holder to amend Execution

Petitions Nos.1267/2014 and 1274/2014 so that its

claim in both the petitions should not exceed the

amount due to the decree holder under the transaction

in which decree holder has obtained two (2) separate

decrees. In other words, it has been held that decree

holder has to restrict its prayer as against jointly and

severally liability fixed under the decrees, though it has

been held that two execution petitions i.e., Execution

Petition Nos.1267/2014 and 1274/2014 are

maintainable.

RE: W.P.Nos.32400 & 32405/2015: 3. Decree holder under these two writ petitions

having obtained a Judgment and decree against

respondents - Judgment debtors on 13.12.2013 by High

Court of Justice, Queen’s Bench Division, Commercial

Court, Royal Court of Justice have filed two execution

petitions namely Execution No.1268/2014 and

9

Execution Petition No.1276/2014 against Kingfisher

Airlines Limited and United Breweries Holdings Limited

before City Civil Court, Bengaluru. The original

judgment and decrees came to be modified during the

pendency of execution petitions. Hence, applications for

amendment came to be filed in these two execution

petitions seeking for amendment namely, to amend the

amounts mentioned in the respective executive

petitions. Applications for amendment of executive

petitions came to be opposed by both the judgment

debtors. At the time of hearing of these amendment

applications , Executing Court suo moto raised the issue

of maintainability of these execution petitions i.e.,

Execution Petitions Nos.1268/2014 and 1276/2014

since judgment and decree passed against both

judgment debtors are one and same. After hearing the

learned Advocates appearing for the parties, Executing

Court by impugned orders has arrived at a conclusion

that since the amount claimed in both the Execution

Petition Nos.1268/2014 and 1276/2014 are one and

same and decree holder having filed two Execution

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Petitions viz., 1267/2014 and 1274/2014 which relates

to same transaction, decree holder with an intention to

recover double the decretal amount, directed the decree

holder to amend Execution Petitions Nos.1268/2014

and 1276/2014 so that its claim in both the petitions

should not exceed the amount due to the decree holder

under the transaction in which decree holder has

obtained two (2) separate decrees. In other words, it

has been held that decree holder has to restrict its

prayer as against jointly and severally liability fixed

under the decrees, though it has been held that two

execution petitions i.e., Execution Petition

Nos.1267/2014 and 1274/2014 are maintainable.

RE: W.P.NO.32401/2015, 32402/2015 AND W.P.32404/2015 4. Decree holders in these three writ petitions has

filed three (3) Execution Petitions Nos.1272/2014,

1273/2014 and 1275/2014 for enjoying the fruits of

judgment and decrees obtained by them from High

Court of Justice Queen’s Bench Division, Commercial

Court, Royal Court of Justice on 13.12.2013. Said

11

judgment and decrees came to be modified by the Court

which originally passed the judgment and decrees.

Hence, decree holders in these three (3) execution

petitions filed applications for amendment of the

execution petitions namely, decree holders sought for

incorporating the modified decretal amounts in the

pending execution petitions, contending interalia it is a

subsequent event. Said applications for amendment

came to be opposed by the judgment debtors in all three

(3) execution petitions by filing detailed objections. At

the time of considering these applications for

amendment, Executing Court suo moto raised the issue

of maintainability namely, as to how two (2) execution

petitions i.e., one against principal borrower and

another against guarantor based on same judgment and

decree is maintainable and heard the learned

Advocates. It came to be held by the Executing Court

that the decree holder has filed two execution petitions

i.e., against the principal borrower and guarantor

separately and as such decree holder would be

recovering twice the decretal amount and as such

12

decree holder cannot proceed against both the judgment

debtors simultaneously and if permitted to continue

there is chance of misuse and it may not be possible for

the Executing Court to ascertain as to how much

amount has been paid to the decree holder if two

petitions are continued. By recording such finding,

execution petitions filed by decree holders in Execution

Petition Nos. 1272/2014, 1273/2014 and 1275/2014

came to be dismissed as not maintainable.

5. It is the contention of Sri.Kevic Setalvad,

learned Senior counsel appearing for petitioner/decree

holder that judgment of Apex Court in

S.P.Chengalvaraya Naidu (dead) by LRs Vs Jagannath

(dead) by Lrs and others reported in [(1994) 1 SCC 1]

AIR 1994 SC 853 has been erroneously held as

applicable to the facts on hand, inasmuch as, in the

said case respondent therein had obtained a

preliminary decree from the Court without disclosing

certain vital facts to the Court which the respondent

was bound to disclose. Whereas such factual aspect

13

was not present in the instant case and it had failed to

note that the liability of the guarantor was co-extensive

with that of principal debtor and as such, judgment

debtor/s were liable to pay the decretal amount and as

such decree holder was entitled to independently

proceed against guarantor and principal debtor. Hence,

he contends Executing Court erred in directing the

decree holder to restrict the claim by amending the

execution petition so that claim in both the petitions

would not exceed the decretal amount though there are

two separate decrees. It is also contended that there is

no bar under any law which prevents the decree holder

from claiming decreetal amount under separate decrees

from the Principal debtor and guarantor and in support

of his submission has relied upon the Judgment of

Bombay High Court in the case of Jagannath

Ganeshram Agarwala Vs Shivnarayan Bhagirath and

others reported in AIR 1940 Bombay 247 which is to

the effect that liability of a surety is co-extensive, but is

not in the alterative and as such both principal and

surety would be liable at the same time to the creditors

14

and hence, Executing Court could not have directed the

decree holder to amend execution petitions which would

in effect result in decree holder restricting the claim in

execution petition contrary to the decree obtained by it.

He would also rely upon the Judgment of Division

Bench of this Court in the case of The Hukumchand

Insurance Co. Ltd., Vs The Bank of Baroda and

others reported in AIR 1977 Kar 204 whereunder it

has been held that liability of a principal debtor and

liability of a surety is co-extensive with that of the

former are really separate liabilities although arising out

of the same transaction and two liabilities are separate

and distinct. Hence, he would contend that liability of

the surety being co-extensive with that of principal they

are in fact separate liability which can be enforced

independently against both of them. He would also rely

upon the Judgment of Apex Court in the case of Bethia

Venkanna Vs Sait Chunilal Moolchand Registered

Firm, Kakinada, by Managing Partner, Chunilal

reported in AIR 1961 AP 63 whereunder it has been

clearly held that it does not preclude the decree holder

15

from proceeding to recover their amount from two

judgment debtors simultaneously by filing two

execution petitions and as such impugned order is

devoid of merit. He would draw the attention of this

Court to the fact that executing Court having not

chosen to follow the Judgment of Division Bench on the

premise that it was rendered long ago and infact said

Judgment has been subsequently followed in the case of

Venkateshwara Rao and others Vs Margadarshi Chit

Funds Ltd., and anr reported in 2003 SCC online AP

659 and as such the Division Bench Judgment has not

lost its precedential value. He would also further

contend that executing Court erred in relying upon the

Judgment of Madras High Court in the case of

Dr.Vimala and M/s.Sriram Chits and Investments

Pvt. Ltd., reported in 1999 SCC online Madras 710

though is not cited by counsel appearing for respondent

or any other party and without affording an opportunity

to distinguish said Judgment on facts since it does not

lay down the correct law.

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He would further submit that principles of natural

justice was given a go by. Hence, on this ground also

he prays for setting aside the impugned order. He

would further contend that executing Court committed

an error in arriving at a conclusion that provisions of

Order 21 Rule 21 does not contemplate to proceed with

separate execution petitions against two Judgment

debtors independently. On the other hand, plain

reading of Order 21 Rule 21 CPC does not indicate that

the decree holder is precluded from proceeding against

different Judgment debtors simultaneously and

separately. He would also submit that power to direct a

party to make good the benefits it has gained by calling

upon them to disclose same and as such he contends

that Judgment of Madras High Court does not lay down

the correct law. On these grounds he seeks for setting

aside the order impugned in W.P.No.32399/2015,

W.P.No.32400/2014, W.P.No.32403/2015 and

W.P.No.*32405/2015.

*Corrected V.C.O. dtd. 30-11-2016

17

6. Insofar as W.P.No.32401/2015, W.P.No.

32402/2015, * and W.P.No.

32404/2015 are concerned he would reiterate the

contentions raised in the earlier writ petitions and very

heavily relies upon the Judgment of Division Bench

Judgment of Andhra Pradesh in the case of Bethia

Venkanna Vs Sait Chunilal Moolchand Registered

Firm, Kakinanda by Managing Partner, Chunilal

reported in AIR 1961 AP 63 which has been

subsequently followed by learned Single Judge of High

Court of Andhra Pradesh in the case of Venkateshwara

Rao and others Vs Margadarshi Chit Funds Ltd., and

anr reported in 2003 SCC online AP 659 and contends

that dismissal of Execution Petitions Nos.1272/2014,

1273/2014 and 1275/2014 on the ground of Execution

Petitions Nos.1269/2014, 1270/2014 and 1271/2014

has been filed against principal debtor was pending and

as such, it would result in every chance of misuse by

decree holder is erroneous and liable to be set aside.

Hence, he prays for allowing the writ petitions and in

*Corrected V.C.O dtd. 30-11-2016

18

support of his submission he has relied upon the

following Judgments:

(i) AIR 1961 AP 63 – Bethia Venkanna Vs Sait

Chunilal Moolchand Registered Firm,

Kakinanda by Managing Partner, Chunilal

(ii) AIR 1977 Kar 204 – The Hukumchand

Insurance Co. Ltd., Vs The Bank of Baroda

and others

(iii) 2002 (1) CTC 48 – Ram Narayan Bhatted

Vs Vimala Jhavar and six others

7. Per contra, Sri.Sajjan Poovayya, learned Senior

counsel appearing on behalf of respondents in

W.P.32401/2015, W.P.32402/2015, W.P.32403/2015,

W.P.32404/2015 and W.P.32405/2015 would support

the impugned orders and also contend that orders

passed by the Executing Court on maintainability

should not be interfered in exercise of supervisory

jurisdiction under Article 227 of Constitution of India

and such exercise should not be undertaken. He would

19

also submit that when Order 21 Rule 17 mandates

furnishing of all particulars about any pending

execution petitions in respect of same decree by the

decree holder and consequence of non furnishing of

such information under Rule 11 particularly Rule

11(2)(a) to (f) by the decree holder is an indicator to the

fact that decree holder had suppressed filing of

simultaneous execution petitions against principal

borrower and guarantor so as to have unjust

enrichment and as such there is no error committed by

the Executing Court in passing the impugned orders

and as such he prays for dismissal of the writ petitions.

In support of his submission he has relied upon the

following Judgments:

(i) (2015) 5 SCC 423 – Radhey Shyam and

anr Vs Chhabi Nath and others

(ii) (2003)6 SCC 675 – Surya Deva Rai Vs

Ram Chander Rai and others

(iii) AIR 1951 P & H 371- Mr.D.H.M.Framjee

and others Vs The Eastern Union Bank Ltd.,

Chittagong

20

(iv) AIR 1994 SC 853 – S.P.Chengalvaraya

Naidu Vs Jagannath

(v) AIR 2012 SC 2858 – Badami Vs Bhali

8. Sri S.V.Rajesh appearing for respondents in

W.P.No.32399/2015 and W.P.No.32400/2015 would

support the impugned orders and pray for dismissal of

the writ petitions.

9. Having heard the learned advocates appearing

for parties and on perusal of the records it would

indicate the decree holder in Execution Petitions

Nos.1267, 1268, 1274 & 1276/2014 are same and

judgment debtors in Execution Petitions

Nos.1267/2014 and 1268/2014 are also same

(Kingfisher Airlines). Likewise, judgment debtors in

Execution Petition Nos.1272, 1273, 1274, 1275 &

1276/2014 are same (United Breweries (Holdings)

Limited). Decree holder in Execution Petitions Nos.1273

and 1275/2014 are also same (AWAS Ireland Leasing

Three Limited). However, judgment debtors are

common in these two (2) petitions (United Breweries

21

(Holdings) Limited) whereas, decree holder (AWAS

Ireland Leasing Three Limited) has filed two (2)

execution petitions against principal borrower in

Execution Petitions Nos.1270 and 1271/2014 and

decree holder M/s.JB 2443 INC. filed Execution

Petition No.1272/2014 against guarantor and Execution

Petition No.1269/2014 against principal borrower.

10. Writ Petitioner/decree holders initiated

execution proceedings against respondents i.e.,

principal borrower - Kingfisher Airlines and guarantor –

United Breweries (Holdings) Limited by filing separate

execution petitions for recovery of amounts due and

payable as per judgment and decree passed in United

Kingdom Court which claim was allowed initially on

13.12.2013 as per Judgment and decree and later

modified on 23.06.2014. Cause notice was issued on

these execution petitions to the Judgment debtors and

they have appeared and filed their objections to all the

execution petitions. In view of respective decrees

having been modified, it resulted in filing applications

22

for amendment of execution petitions and at that point

of time, Executing Court suo moto raised the issue

regarding maintainability of two separate petitions filed

by decree holders against principal borrower and

guarantors and has passed the impugned orders by

recording following findings:

FINDINGS RECORDED BY EXECUTING COURT

11. In Writ Petition No. 32399/2015,

W.P.No.32400/2015, W.P.No.32403/2015 and

W.P.No.32405/2015 executing Court has held that two

execution petitions namely, against principal borrower

and guarantor are maintainable but has directed the

decree holder to amend the execution petitions so that

claim in the execution petitions would not exceed the

amount due under the transaction in which decree

holder has obtained separate decrees. However,

Execution Petitions Nos.1272/2014, 1273/2014 &

1275/2014 are dismissed as not maintainable on the

ground decree holder has filed Execution petitions

Nos.1269/2014, 1270/2014 and 1271/2014 and said

23

order is impugned in W.P.Nos.32401/2015,

32402/2015 and 32404/2015.

12. There cannot be any dispute with regard to

exercise of supervisory jurisdiction by this Court under

Article 227 of Constitution of India. Article 227 confers

every High Court power of superintendence over all

Courts and Tribunals through out territories in relation

to which it exercises jurisdiction.

13. Where the Court assumes a jurisdiction

which it does not have and failed to exercise jurisdiction

which it does have and available jurisdiction being

exercised in a manner which has occasioned injustice or

failure of justice would be the ground on which this

Court can exercise power under Article 227 of

Constitution of India. It has been held by Apex Court in

the case of RADHEY SHYAM AND ANOTHER vs

CHHABI NATH & OTHERS reported in (2015)5 SCC

423 that despite curtailment of revisional jurisdiction

under Section 115 CPC by Act No.46 of 1999, the

24

jurisdiction of High Court under Article 227 remains

unaffected. It has been held as under:

“25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King’s Court in India and of all the other Courts having limited jurisdiction subject to the supervision of the King’s Court. Courts are set up under the Constitution or the laws. All the Courts in the jurisdiction of a High Court are

subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Board principles of writ jurisdiction followed in England are

applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or Courts other than judicial Courts. There are no precedents in India for the High Courts to issue writs to the subordinate Courts. Control of working of the subordinate Courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence

under Article 227.”

14. Keeping these principles in mind, facts on

hand in these writ petitions are to be examined in the

25

background of impugned order. At the outset it

requires to be noticed that a decree holder by virtue of

power available under Order 21 Rule 11, 21 and 30

would be entitled to proceed simultaneously against

different Judgment debtors for recovery of the decretal

amount. Code of Civil Procedure Code or any other law

does not indicate that decree holder would have to

restrict his claim in the simultaneous execution

petitions filed against the judgment debtors where the

claim is joint and several. Infact similar issue came up

for consideration before a Division Bench of Andhra

Pradesh High Court in the case of Bethia Venkanna Vs

Sait Chunilal Moolchand Registered Firm, Kakinada,

by Managing Partner, Chunilal reported in AIR 1961

AP 63 and point formulated for consideration was to

the following effect.

“3. The simple point that arises for consideration in this appeal is as to whether simultaneous execution can proceed in two separate applications against two different judgment-debtors for the same amount due under the decree, at one and the same time?”

26

15. Having raised said question it came to be held

that a decree holder would be entitled under law to

proceed simultaneously against both Judgment debtors

in execution of the decree passed against them and no

specific permission is required for adopting such course,

since CPC or any other law would not lay down

positively that several applications for execution of a

decree cannot be filed simultaneously. In conclusion it

has been held that two execution petitions can be filed

by a decree holder and if decree holder chooses to

recover such amounts simultaneously from two

judgment debtors the only course which requires to be

adopted by such decree holder is to disclose the

amounts having recovered in either of the petitions, so

as to ensure that decree holder would not have unjust

enrichment as otherwise such decree holder would be

recovering twice the decretal amount or the amount to

which decree holder would be entitled to. It has been

held by Division Bench to the following effect:

“The argument proceeds on the basis

that, as regards the sum of Rs.14,619-13-7, there cannot be two E.Ps.

27

simultaneously pending against the two defendants. We are unable to accede to this contention. For the decree-holder is entitled under law to proceed

simultaneously against the different judgment-debtors in execution of his decree and even the specific permission of the Court is not required for such a course. There is nothing in the Civil Procedure Code or in any other law which lays down positively that several applications for execution of a decree cannot be filed simultaneously.

Under Order 21, Rule 11(2) (e), C. P. C.,

the decree-holder has to mention in an E. P. only "whether any, and (if any), what payment or other adjustment of

the matter in controversy has been made between the parties subsequently to the decree' and not the amount for which he has filed any E. P. which is pending. Under Order 21, Rule 11(2)(f), C. P. C., every application for execution of a decree should state whether any and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results.

Certainly this provision does not bar

simultaneous executions. Order 21, R. 30, C. P. C., deals with simultaneous execution of a decree in several ways.

This provides for the execution of a decree for the payment of money by detention of the judgment-debtor or by the attachment and sale of his property or by both. Even these two modes of execution are mentioned as alternative to other reliefs which were available to

28

the decree-holder and it is for the latter to choose and decide. Rule 21 is general in its terms and it contemplates that the execution of a decree against the person

and property of the judgment-debtor can proceed simultaneously. In fact, its implication is that in the absence of a specific provision, the Court may not have any discretion to refuse the simultaneous execution.

7. In our judgment, a decree-holder can in law file two execution petitions when it is clear, that the execution in each petition is only for the decree amount due from the defendants concerned in that petition. It is not disputed that the full amount of decree

is due from each of them -- as in the present case, when E.P.No.42 of 1957 was filed against the second defendant, obviously the full amount of Rs.19,282-12-3 with subsequent interest and costs was due on that decree from the second defendant and the full amount of Rs.14,619-13-7 with interest and costs was due from the first defendant.

It cannot be pretended for a moment

that every Execution Petition filed against every judgment-debtor succeeds cent per cent and thereby results in the realisation of the entire amount due under the decree.

There is many a slip between the filing and the closing of an execution petition and a decree-holder has ordinarily to face the chance of an execution petition not being successful in full. He has to take a practical view of the matter,

29

realise the undeniable fact that he may meet a stiff contest in that petition and that the amount of effort, ingenuity and tactics which are put forward by the

judgment-debtors in that petition can be of large magnitude and can deprive him of realisation of the decree in full or in part.

It is only quite common that not only in suits but also in execution petitions all possible lines of fact and law are explored by parties concerned to gain success for themselves at the cost of the opposite party. Consequently, if the law were to force a decree-holder to treat an execution petition which he has filed for a certain amount as equivalent to having realised the amount, it would be like

forcing him to count the chickens before they are hatched. We find that the contentions raised on behalf of the appellant are untenable and agree with the conclusion reached by the lower Court.”

(emphasis supplied by me)

16. There cannot be any dispute to the

proposition that the liability of the surety with that of

principal borrower being co-extensive and they are

separate liabilities although arising out of the same

transaction and not withstanding that they stem from

same transaction, their liability would be separate and

distinct. For this proposition Judgment of Division

30

Bench in the case of The Hukumchand Insurance Co.,

Ltd., Vs The Bank of Baroda and others reported in

AIR 1977 KAR 204 whereunder it has been held that

liability of a principal debtor and liability of a surety

which is co-extensive with that of the former and they

are really separate liabilities although arising out of

same transaction. It has been held by the Division

Bench as under:

“12. Point (d): It is no doubt true xxx the surety is permissible.

The question as to the liability of the

surety, its extent and the manner of its enforcement have to be decided on first principles as to the nature and incidents of suretyship. The liability of a principal debtor and the liability of a surety which is co-extensive with that of

the former are really separate liabilities, although arising out of the same transaction. Notwithstanding the fact that they may stem from the same transaction, the two liabilities are distinct. The liability of the surety does not also, in all cases, arise simultaneously. This proposition finds support in a passage from Halsbury's Laws of England (Third Edition, Volume 22 para 819)”

31

17. Division Bench of Madras High Court in the

case of Ram Narayan Bhatted Vs Vimala Jhavar and

six others reported in 2002 (1) CTC 48 after referring

to the Judgment of Andhra Pradesh High Court in the

case of Bethia Venkanna Vs Sait Chunilal Moolchand

Registered Firm, Kakinada, by Managing Partner,

Chunilal reported in AIR 1961 AP 63 whereunder it

was held that decree holder is entitled under law to

proceed simultaneously against different Judgment

debtors for the same amount in execution of his decree

and the specific permission of the Court is not required

for such a course held that there is no specific provision

of law which requires permission to be obtained from

the Court for simultaneous execution of decree by

decree holder before the Court which passed the decree

and also Court to which decree has been transferred.

Though it was examining as to whether under Order 21

Rule 22 CPC execution petition when filed as to

whether notice is necessary to be sent to the Judgment

Debtor or not. In principle it has been held by Division

Bench of Madras High Court that two simultaneous

32

petitions by decree holder arising out of same Judgment

and decree would be maintainable.

18. In the light of the law laid down by Division

Bench of Madras High Court as well as Division Bench

of Andhra Pradesh High Court in Bethia Venkanna’s

case referred to supra this Court is of the considered

view that decree holder would be entitled under law to

proceed against different Judgment debtors

simultaneously and in the instant case Judgment

debtors being separate and decrees being separate

particularly in W.P.32399/2015, W.P.32400/2015,

* W.P.32403/2015 and

W.P.32405/2015 two execution petitions filed by decree

holder will necessarily have to be held as maintainable

which is also the finding given by executing Court in

Execution Petitions Nos.1267, 1268, 1274 &

1276/2014. However direction issued to the decree

holder to amend the execution petitions so that the

amount claimed in the simultaneous petitions filed

against principal borrower and guarantor would result


33

in claim being halved and same is impermissible. In the

background of undertaking given by learned Senior

counsel appearing for decree holder on 07.04.2016

which is to the effect that in the event of decree holders

were to realise any amounts from either of the

Judgment debtors amounts claimed in respective

petitions would be given set of or deducted from the

total claim deserves to be accepted for the purpose of

holding simultaneous petitions would be maintainable.

Judgment debtors cannot be heard to contend that

decree holder is required to restrict their claim in all

these execution petitions to the extent of 50% only.

However to allay the apprehension of Judgment debtors

that decree holder may suppress the fact of amounts

realized, it would suffice if decree holder is directed to

file an affidavit of undertaking indicating thereunder

that as and when amounts are realised in any of the

execution petitions i.e., filed against borrower or

guarantor they would file memo indicating the amounts

realized or received or recovered from the respective

34

Judgment debtors. As such the impugned orders

cannot be sustained.

19. On facts, it requires to be noticed that decree

holders namely, M/s.PAFCO 2916 INC., *M/S PAFCO

2919 INC., AWAS Ireland Leasing Three Ltd and JB

2443 INC. (USA) filed the following *ten execution

petitions against the decree holders as indicated herein

below:

Execution Petition No.

Name of decree holder

Name of judgment debtor

Rank of the judgment debtor in the

judgment

1272/2014 JB 2443 INC. (USA)

United Breweries (Holdings) Ltd.

Defendant-Guarantor

1269/2014 JB 2443 INC. (USA)

Kingfisher Airlines

Defendant-Principal Borrower

1273/2014 AWAS

Ireland Leasing Three Ltd.

United

Breweries (Holdings) Ltd.

Defendant-

Guarantor

1270/2014 AWAS Ireland

Leasing Three Ltd.

Kingfisher Airlines

Defendant-Principal

Borrower

1275/2014 AWAS Ireland

United Breweries

Defendant-Guarantor

*Corrected V.C.O dtd. 30-11-2016

35

Leasing Three Ltd

(Holdings) Ltd.

1271/2014 AWAS

Ireland Leasing Three Ltd

Kingfisher

Airlines

Defendant-

Principal Borrower

1274/2014 PAFCO 2916 INC.

United Breweries

(Holdings) Ltd.

Defendant-Guarantor

1267/2014 PAFCO 2916 INC

Kingfisher Airlines


1276/2014 PAFCO *2919 INC

United Breweries (Holdings) Ltd.

Defendant-Guarantor

1268/2014 PAFCO *2919 INC

Kingfisher Airlines


Thus, it could be seen from the above referred tabular

column that decree holder has proceeded to execute the

decree by filing execution petitions both against the

principal borrower as well as guarantor, simultaneously

by filing two different execution petitions.

20. Under Order 21 Rule 11 CPC, a decree

holder would be entitled to proceed simultaneously

against the different judgment debtors in execution of

his decree as already discussed herein above. There is


36

nothing in the Code of Civil Procedure or in any other

law which lays down positively that several applications

for execution of a decree cannot be filed simultaneously.

The rules of procedure are hand made of justice. Order

21 Rule 11 (2)(e) CPC mandates that the decree holder

has to indicate in the execution petition as to “whether

any, and (if any), what payment or other adjustment of

the matter in controversy has been made between the

parties subsequently to the decree” and not the amount

for which the decree holder has filed any other

execution petition which is pending. However, under

Order 21 Rule 2(f) CPC, the decree holder has to state

“whether any, and (if any) what, previous applications

have been made for the execution of the decree, the dates

of such applications and the results”. Thus, it would

indicate that Order 21 Rule 11 CPC does not bar

simultaneous executions. However, in case of two

execution petitions being filed namely, (1) for arrest of

judgment debtor and other execution petition is filed to

proceed against the property of same judgment debtor,

then in such a situation, executing Court may refuse

37

execution against the person and property of said

judgment debtor at the same time as indicated in Order

21 Rule 30 CPC.

21. In conclusion, it is held that a decree holder

would be entitled to file two execution petitions for

realizing or recovering the decretal amount due from

two judgment debtors, when judgment and decree

passed against them is joint and several. As such, the

reasoning adopted by the Executing Court either in

holding that two simultaneous execution petitions filed

by the decree holder against the principal debtor and

the guarantor is not maintainable or directing the

decree holder to amend the execution petitions so as to

conform the claim made in two simultaneous execution

petitions would not exceed the decretal amount put

together cannot be sustained.

22. In view of the fact that simultaneous

execution petitions having been filed by decree holder in

W.P.32401/2015, W.P.32404/2015, W.P.32402/2015

for realization of amounts due from the Judgment

38

debtors which decree is joint and several executing

Court was not justified in dismissing the execution

petitions 1272/2014, 1275/2014 and 1273/2014 as

not maintainable.

23. For reasons indicated hereinabove, I proceed

to pass the following:

ORDER

1. Writ petitions are hereby allowed.

2. Impugned orders in W.P.No.32399/2015,

W.P.No.32400/2015, W.P.No.32403/2015,

W.P.No.32405/2015 to the extent of

directing the claim of decree holder to

amend Execution Petitions Nos.1274/2014,

1276/2014, 1267/2014 and 1268/2014 is

hereby set aside. It is held that there being

two separate decrees and execution

petitions having been filed against principal

borrower as well as guarantor such

execution petitions are maintainable as filed

39

and decree holder would be at liberty to

proceed against Judgment debtors.

3. W.P.No.32401/2015, W.P.No.32402/2015

and W.P.No.32404/2015 are hereby

allowed.

4. Order dated 29.04.2015 passed dismissing

the Execution Petitions Nos.1272/2014,

1273/2014 and 1275/2014 as not

maintainable is hereby set aside and it is

held that said execution petitions are

maintainable and decree holder would be at

liberty to prosecute all these execution

petitions simultaneously against Judgment

debtors by independent execution petition

and as already indicated herein above the

decree holder shall file an affidavit of

undertaking in each of these execution

petitions undertaking thereunder to disclose

the amounts realised if any from either of

the Judgment debtors during the course of

40

execution proceedings and said affidavit of

undertaking shall be filed on the next date

of hearing before the executing Court.

It is made clear that no opinion is expressed

with regard to any other aspects relating to

execution petitions.

SD/-

JUDGE

*sp/SBN

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