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PETITIONER: STATE BANK OF INDIA

       Vs.

RESPONDENT: INDEXPORT REGISTERED AND ORS.

DATE OF JUDGMENT30/04/1992

BENCH: YOGESHWAR DAYAL (J) BENCH: YOGESHWAR DAYAL (J) RANGNATHAN, S. RAMASWAMI, V. (J) II

CITATION:  1992 AIR 1740            1992 SCR  (2)1031  1992 SCC  (3) 159        JT 1992 (4)   273  1992 SCALE  (1)1109

ACT:      Civil Procedure Code, 1908:      Order  21,  Rules 30, 46, 46A, 46B, 46F,  50,  72A  and Order 34, Rules 4 and 5 and Sections 47 and 151-Execution of Composite  decree  comprising  a  money  decree   personally against all defendants-judgment debtors, and also a mortgage decree  against  one  of the partners  in  respect  of  shop mortgaged  by  him-Whether  decree-holder  can  execute  the decree  first  against  the  guarantor  without   proceeding against the mortgaged property-Whether guarantor can be sued without   even   suing  the   principal   debtor-Guarantor’s liability-Whether  co-extensive  with   that  of   principal debtor-Whether  executing  court can go beyond  the  decree- Contract Act, 1872 : Section 128.

HEADNOTE:      The   appellant-Bank  had  granted  a  Packing   Credit facility to the extent of Rupees one lakh to the  Respondent No.  1  -  Firm,  consisting of Respondent  No.  2  and  the deceased  son  of Respondent No. 3.  Respondent  No.  2  had created  an equitable  mortgage of his shop as security  and Respondent  No.  4,  father of  the  deceased  partner,  had executed  a  Deed of Guarantee in favour of  the  appellant- Bank.      The appellant-Bank filed a suit against the respondents including Respondent No. 3 who was impleaded in place of her deceased son, for a money decree and also for a  preliminary decree against Respondent No. 2, and for a direction that if he committed default, a final decree be passed against  him, with  permission  to the appellant to apply for  a  personal decree against him for any deficiency after the sale of  the mortgaged  property.   The  suit was decreed  by  the  trial court.      No  appeal  was  filed  by  the  Respondent  No.  4   - Guarantor,  and  the decree became final.  At  the  time  of execution  of the decree Respondent No. 4 objected to it  on the  ground  that  since no steps  were  taken  against  the mortgaged property i.e. shop, no action by way of  execution could be taken                                                        1032

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for proceeding against the guarantor till the mortgaged shop was  sold and only if the realisation from the sale  of  the shop was deficient, then the balance could be recovered from the judgment-debtors personally.      The Additional District Judge held that since it was  a composite  decree,  and  the  mortgaged  property  was  also involved,  the  decree-holder should  have  proceeded  first against  the mortgaged shop and, since it had not  done  so, the  execution application against the objector  (guarantor) did  not lie.  The appellant-decree-holder  challenged  this decision  before  the High Court which  also  dismissed  the revision petition.  Hence the appeal by the decree- holder.      Allowing the Appeal, this Court,      HELD : 1. The decree is a money decree against all  the defendants-respondents  and a mortgage decree  only  against defendant-respondent No. 2 so far as the shop is  concerned. The  decree  does  not put any fetter on the  right  of  the decree-holder to execute it against any party, whether as  a money decree or as a mortgage decree.  The execution of  the money  decree  is not made dependent on first  applying  for execution  of  the  mortgage decree.   The  choice  is  left entirely  with the decree-holder.  There is  no  preliminary mortgage  decree either.  It is a final mortgage decree  for sale  of shop after three months.  The decree is not in  the prescribed  Form No. 5 of Appendix ‘D’ to the Code of  Civil Procedure.  The decree does not postpone the execution.   It is simultaneous and is jointly and severally against all the defendants-respondents, including the guarantor.  It is  the right  of the decree-holder to proceed with it in a  way  he likes.   There is nothing in law which provides a  composite decree to be first executed only against the property. [1037 C-E, 1038 E]      1.2 The decree for money is a simple decree against the judgment-debtors,  including  the guarantor and  in  no  way subject to the execution of the mortgage decree against  the judgment debtor No. 2-Respondent No.  2. If, on principle, a guarantor  could be sued without even suing  the  principal- debtor  there is no reason, even if the decretal  amount  is covered by the mortgage decree to force the decree-holder to proceed  against  the mortgaged property first and  then  to proceed against the guarantor.                                             [1040 H, 1041 A]      1.3 If the composite decree is a decree which is both a personal                                                        1033 decree as well as a mortgage decree, without any  limitation on its execution, the decree-holder, in principle, cannot be forced  to first exhaust the remedy by way of  execution  of the  mortgage decree alone and told that only if the  amount recovered  is  insufficient,  he can be  permitted  to  take recourse  to  the execution of the personal decree.   For  a simple  mortgage  decree  as prescribed in  Form  No.  5  of Appendix  ‘D’ of the Code of Civil Procedure it could be  so because the decree provides like that.  It is only when  the sum   realised  on  sale  of  the  mortgaged   property   is insufficient then the judgment-debtor can be proceeded  with personally. [1041 C-D]      Union  Bank  of India v. Manku Narayana,  AIR  1987  SC 1078, differed.      Bank  of Bihar Ltd. v. Damodar Prasad & Anr., [1989]  1 SCR 620, relied on.      The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda JUDGMENT: v.  Shivnarayan Bhagirath & Ors., AIR 1940 Bombay,  247  and Muthuvelappa  Goundan  & Anr. v. Palaniapa Chettiar  &  Ors.

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1937 Madras Weekly Reports 373, approved.      Raja Raghunandan Prasad Singh & Anr. v. Raja Kirtyanand Singh Bahadur, AIR 1932 P.C. 131, distinguished.      Pollock & Mulla on Indian Contract and Specific  Relief Act, Tenth Edition. p 728; Chitty on Contracts 24th  Edition Volume  2,  p.  1031, paragraph 4831 &  Halsbury’s  Laws  of England Fourth Edition paragraph 159 p. 87, referred to.      In the instant case, the guarantor never took any  plea in  the  suit  to  the effect that  his  liability  is  only contingent if remedies against the principal debtors fail to satisfy  the dues of the decree-holder.  If such a plea  had been taken and the court trying the suit had considered  the plea  and gave and finding in favour of the guarantor,  then it would have been a different position.  But on the face of the  decree,  which  has  become  final,  the  court  cannot construe it otherwise than its tenor. No executing court can go beyond the decree.  All such pleas as to the rights which the  guarantor  had, had to be taken during  trial  and  not after  the decree while execution is being levied. [1042  G, 1043 A]      1.5 The orders of the High Court and of the  Additional District Judge                                                        1034 are  set  aside.  The decree-holder is entitled  to  proceed against  the  guarantor  (judgment-debtor  No.  4)  for  the execution of the decree in question. [1043 B]

&      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1888 of 1992.      From  the  Judgment and Order dated  23.5.1990  of  the Delhi High Court in Civil Revision No. 587 of 1989.      G.  Ramaswamy,  Harish N. Salve, Rajiv Kapur  and  R.P. Kapur for the Appellants.      J.C.  Batra, Vijay Kumar, H. Chawla, S. Prasad and  Ms. Sangeeta Aggarwal for the Respondents      The Judgment of the Court was delivered by      YOGESHWAR DAYAL, J.  Special leave granted.      This  appeal  is directed against the judgment  of  the High Court of Delhi dated 23rd April, 1990 whereby the  High Court was pleased to dismiss the revision petition filed  by the  appellant-Bank against the judgment of the   Additional District  Judge,  Delhi  dated 5th  May,  1989  whereby  the Additional District Judge, Delhi, relying upon the  decision of this Court in Union Bank of India v. Manku Narayana,  AIR 1987 SC 1078, dismissed the Execution Application No. 39  of 1985 against respondent No 4 (judgment debtor-Guarantor).      The  question involved in the appeal really is  whether the  said  decision is correct.  In  Manku  Narayana’s  case (supra) this Court took the view that:          "The  decree  in execution is a  composite  decree,          personally  against  the defendants  including  the          respondent and also against the mortgaged property.          We  do  not  pause  to  consider  whether  the  two          portions  of the decree are severable or  not.   We          are of the view that since a portion of the decreed          amount  is  covered by the  mortgage,  the  decree-          holder  Bank has to proceed against  the  mortgaged          property   first  and  then  proceed  against   the          guarantor.  Since the High court was not told  that          such  steps were taken, we do not think we will  be          justified in                                                        1035

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        holding that the High Court was in error in  making          the direction which is under challenge before us."      Before  we go into the question of the  correctness  or otherwise  of  the  aforesaid decision a few  facts  of  the present case may be noticed.      The  appellant,  one of the Nationalised  Banks,  is  a decree-holder.  M/s. Indexport Registered, respondent no. 1, is  a partner firm.  Shri Janeshwar Kumar  Jain,  respondent No. 2, was a partner of respondent No. 1 along with one Shri Ajay Kishan Mehta (since deceased and now represented by his mother  Smt.  Savitiri Devi, respondent No.  3).   Shri  Ram Kishan, respondent No. 4, is a guarantor.      The  appellant-Bank had granted to respondent No.  1  a Packing  Credit Facility to the extent of Rs.  1,00,000  and respondent No. 4 had executed a Deed of Guarantee in  favour of the appellant-Bank.  Shri Ajay Kishan Mehta, having  died prior  to  the filing of the suit, Smt. Savitiri  Devi,  was impleaded  in  place  of  her  deceased  son  as  his  legal representative.   As a security, respondent No. 2, had  also created  an equitable mortgage of his shop situated in  Rori Bazar, Sirsa, Haryana, in favour of the appellant.      The  appellant was obliged to file a suit  against  the respondents  for  a  money decree for  Rs.  33,705.22.   The appellant  also prayed for a preliminary decree against  the respondent  No.  2  with a direction that if  he  commits  a default  in payments, a final decree be passed  against  him with  permission  to the appellant to apply for  a  personal decree against him for any deficiency after the sale of  the mortgaged   property.   The  suit  was  contested   by   the respondents.   In  paragraph  12  of  its  judgment,   while deciding  issue  No. 7 relating to the relief,  the  learned trial court observed as under:-          "12.  In  view of my findings recorded  above,  the          present  suit  succeeds and decreeing the  same,  i          hereby pass a decree in favour of the plaintiff for          recovery  of  Rs.  33,705.22p.  with  costs.    The          defendants shall pay future interest at the rate of          7% per annum (as agreed in the letter Ex. PAPW 5/4)          from  the date of the institution of the suit  till          its realisation.  The plaintiff Bank shall also  be          entitled  to the amount by way of sale of the  shop          in  case the decretal amount is not paid  within  a          period of three                                                        1036          months from today, decree in question will also  be          deemed  to  be a personal decree  against  all  the          defendants, but, however, decree will be executable          against defendant No. 3 qua the estate inherited by          her  from  Ajay  Kishan  Mehta.   Decree-sheet   be          prepared  and the file be consigned to  the  record          room."      On  an application of the appellant-Bank the  execution of  the decree was transferred to Delhi and on notice  being issued by the Court of the Additional District Judge,  Delhi guarantor-respondent  No.  4  filed  objections.   The  main objection was that no steps were taken against the mortgaged property  i.e. shop and no action by way of execution  could be  taken  for  proceeding against the  guarantor  till  the mortgaged  shop  is sold and it is only if  the  realisation from  the  sale of the shop is deficient  that  the  balance could be recovered from the judgment debtors personally.      The  Additional  District Judge, Delhi,  following  the decision of this Court in Manku Narayana’s case (supra) took the view  that it is a composite decree, personally  against the principal debtor and the guarantor and also against  the

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mortgaged property of defendent No. 2, and therefore,  since it is a composite decree and the mortgaged property is  also involved,  the  decree-holder should  have  proceeded  first against the mortgaged shop and since it has not done so, the execution application against the objector (guarantor)  does not  lie.  The decree-holder challenged this decision  dated 5.5.1989 by way of a revision petition before the High Court and  the  High Court also, following the  decision  of  this Court  in  Manku  Narayana’s  case  (supra),  dismissed  the revision  petition and it is against this decision that  the present appeal arises.      It will be noticed that the loan was taken by the firm, namely, respondent No. 1, which consisted of Sh.  Dhaneshwar Kumar  Jain, respondent No. 2 (defendant No.2) and Sh.  Ajay Kishan  Mehta  (since  deceased).   The  respondent  No.   2 (defendent  No. 2) had created an equitable mortgage of  his shop  and respondent No.4, who is a father of late Sh.  Ajay Kishan Mehta stood guarantor for the loan to respondent  No. 1.  The very wordings of the decree quoted above shows  that it is a personal decree against all the defendants/judgment- debtors.   Respondent No. 4 was defendant No. 4, so it is  a money decree against defendant No. 4 as well.  It is also  a mortgage decree against the mortgagor, namely-defendant  No. 2                                                        1037 only.  The decree specifically mentions that a money  decree is being passed for recovery of Rs. 33,705.22 with costs and the  defendants shall pay interest @ 7% per annum  from  the date  of the institution of the suit till  its  realisation. There  is  also  a  decree passed  in  favour  of  the  Bank entitling it to sell the shop in case decretal amount is not paid within three months from the date of the decree and the decree specifically mentions that it will be deemed to be  a personal  decree against all the  defendants  (respondents). Only  qua  defendant No. 3 it can be executed  only  to  the extent the mother inherited the estate of her son Shri  Ajay Kishan Mehta.  It is thus clear from the decree that it is a money decree against all the defendants (respondents) and  a mortgage decree only against defendent No. 2 (respondent No. 2)  so  far as the shop in concerned.  The decree  does  not put any fetter on the right of the decree-holder to  execute it  against  any party, whether as a money decree  or  as  a mortgage  decree.  The execution of the money decree is  not made  dependent  on  first applying  for  execution  of  the mortgage  decree.   The  choice is left  entirely  with  the decree-holder.   The question arises whether a decree  which is framed as a composite decree, as a matter of law, must be executed against the mortgage property first or can a  money decree,  which  covers  whole or  part  of  decretal  amount covering mortgage decree can be executed earlier.  There  is nothing in law which provides such a composite decree to  be first  executed  only  against the  property.   It  will  be noticed that there is no preliminary mortgage decree either. It  is a final mortgage decree for sale of shop after  three months.   The decree is not in the prescribed form No. 5  of Appendix ‘D’ to the Code of Civil Procedure.      In  Bank of Bihar Ltd. v. Damodar Prasad  and  another, [1969] 1 SCR 620 the facts were that the plaintiff Bank lent money  to Damodar Prasad, defendant No. 1, on the  guarantee of  Paras Nath Sinha, defendant No. 2.  On the date  of  the suit  Damodar  Prasad  was  indebted to  the  Bank  for  Rs. 11,723.56  on  account  of principal  and  Rs.  2,769.37  on account  of  interest.   In spite  of  demands  neither  the principal  debtor  nor  the guarantor paid  the  dues.   The plaintiff  Bank then filed a suit claiming a decree for  the

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amount  due.  The trial court decreed the suit against  both the defendants but while passing the decree the trial  court directed  that  the plaintiff Bank shall be  at  liberty  to enforce  its dues against defendant No. 2 only after  having exhausted  its  remedies  against  defendant  No.  1.    The plaintiff  went  in  appeal  challenging  the  legality  and propriety of this direction.  The High                                                        1038 Court  dismissed the appeal, whereupon on  certificate,  the matter  came before this Court.  Bachawat, J.  speaking  for the Court held that the direction must be set aside.  It was observed that:          "It  is the duty of the surety to pay the  decretal          amount.   On such payment he will be subrogated  to          the rights of the creditor under Section 140 of the          Indian  Contract Act, and he may then  recover  the          amount from the principal.  The very object of  the          guarantee  is defeated if the creditor is asked  to          postpone  his remedies against the surety.  In  the          present  case the creditor is banking  company.   A          guarantee is a collateral security usually taken by          a banker.  The security will become useless if  his          rights  against  the surety can be  so  easily  cut          down."      The Court further held that such directions are neither justified  under Order XX rule 11(1) or under  the  inherent powers  of the Court under Section 151 of the code of  Civil Procedure  to  direct postponement of the execution  of  the decree.      In  the  present  case before us the  decree  does  not postpone  the execution.  The decree is simultaneous and  it is   jointly  and  severally  against  all  the   defendants including  the  guarantor.  It is the right of  the  decree- holder to proceed with it in a way he likes.  Section 128 of the Indian Contract Act itself provides that "the  liability of  the  surety is co-extensive with that of  the  principal debtor, unless it is otherwise provided by the contract".      In  Pollock  & Mulla on Indian  Contract  and  Specific Relief Act, Tenth Edition, at page 728 it is observed thus :          "Co-extensive-Surety’s  liability  is  co-extensive          with that of the principal debtor.          A surety’s liability to pay the debt is not removed          by  reason of the creditor’s ommission to  sue  the          principal  debtor.   The creditor is not  bound  to          exhaust  his  remedy against the  principal  before          suing  the  surety, and a suit  may  be  maintained          against  the  surety though the principal  has  not          been sued."      In  Chitty on Contracts 24th Edition Volume 2  at  page 1031 paragraph 4831 it is stated as under:-                                                        1039          "Prima  facie the surety may be  proceeded  against          without  demand  against  him,  and  without  first          proceeding against the principal debtor."      In  Halsbury’s Laws of England Forth Edition  paragraph 159  at  page  87  it has been  observed  that  "it  is  not necessary  for the creditor, before proceeding  against  the surety,  to request the principal debtor to pay, or  to  sue him,  although solvent, unless this is expressly  stipulated for."      In  The  Hukumchand Insurance Co. Ltd. v. The  Bank  of Baroda  and  others, AIR [1977] Karnataka  204,  a  Division Bench  of  the High Court of Karnataka had  an  occasion  to consider  the question of liability of the surety  vis-a-vis the  principal debtor.  Venkatachaliah, J. (as His  Lordship

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then was) observed:-          "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."      It will be noticed that the guarantor alone could  have been sued, without even suing the principal debtor, so  long as  the  creditor  satisfies the court  that  the  principal debtor is in default.      In   Jagannath   Ganeshram  Agarwala   v.   Shivnarayan Bhagirath  and  others, AIR [1940] Bombay  247,  a  Division Bench  of  the Bombay High Court (Kania and  Wassoodew  JJ.) held  that the liability of the surety is co-extensive,  but is  not in the alternative.  Both the principal  debtor  and the surety are liable at the same time to the creditors.      In  Muthuvelappa  Goundan  and  another  v.   Palaniapa Chettiar  and  other [1937] Madras Weekly Reports  373,  the facts were that the plaint combined two claims, one  against defendants  1  to  3 and their children on the  basis  of  a promissory note Ex. A executed by defendants 1 to 3 and                                                        1040 One Kasiappa, deceased, on 29th August, 1931 and the other a claim  against  Kasiappa’s  sons (defendants 4  and  5)  not merely  on the promissory note but also on a  security  bond Ex.   B executed by Kasiappa on 17th April, 1932 in  respect of  the  amount due under Ex. A. The suit was  decreed.   An appeal  was  filed  by defendants 1  to  3  against  certain directions contained in the decree of the lower court as  to manner  in  which  the  decree  is  to  be  executed.    The Subordinate Judge had to consider the contention put forward on behalf of Kasiappa’s sons that the properties covered  by Ex. B should be sold only after the plaintiff had  exhausted his  remedies  against defendants 1 to 3  and  their  family properties.   The  defendants  1  to  3  contended  to   the contrary.   The  trial  court directed  that  the  plaintiff should bring the secured properties to sale after exhausting the  personal  remedy against the  defendants,  meaning  the remedy  personally against defendants 1 to 3, and  also  the remedy  against the family property of all  the  defendants. The  appeal was filed by defendants 1 to 3 before  the  High court.   It was contended on behalf of the  appellants  that the  lower  court  should have  directed  the  plaintiff  to proceed   in  the  first  instance  against   the   security properties  and  only after they had been  sold  should  the plaintiff  have  been  permitted  to  proceed  against   the appellants  personally.   This contention was sought  to  be supported  before the High Court by the analogy of a  decree to  be  passed  in  mortgage suits.   It  was  pleaded  that provisions  of  Section 68 of the Transfer of  Property  Act should  be  applied as the remedy in respect  of  charge  is governed  by  it.   It  was also  urged  on  behalf  of  the appellants that on the true construction of Section 68,  the course  contended  for by him would be  the  proper  course. This contention of the appellants was negatived by the  High Court.  The High Court observed that this can apply only  as between  the mortgagor and the mortgagee and the  appellants had  nothing  whatever to do with the  security  bond.   The

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relationship  of the appellants was not of the mortgagor  at all, and, therefore, Section 68 could not be invoked.      It  will be noticed that in present case no appeal  was filed by the gurantor against the passing of the decree  and the decree has become final.      The  decree  for money is a simple decree  against  the judgment  debtors  including  the guarantor and  in  no  way subject to the execution of the mortgage decree against  the judgment debtor No. 2. If on principle a                                                        1041 guarantor  could  be sued without even suing  the  principal debtor  there is no reason, even if the decretal  amount  is covered  by the mortgage decree, to force the  decree-holder to proceed against the mortgaged property first and then  to proceed against the guarantor.  It appears the above  quoted observations in Manku Narayana’s case (supra) are not  based on  any established principle of law and/or reasons, and  in fact,  are  contrary to law.  It, of course depends  on  the facts  of  each case how the composite decree is  drawn  up. But  if  the composite decree is a decree which  is  both  a personal  decree as well as a mortgage decree,  without  any limitation   on   its  execution,  the   decree-holder,   in principle,  cannot be forced to first exhaust the remedy  by way of execution of the mortgage decree alone and told  that only  if  the amount recovered is insufficient,  he  can  be permitted to take recourse to the execution of the  personal decree.  For a simple mortgage decree as prescribed in  Form No. 5 of Appendix D of the Code of Civil Procedure it  could be  so  because the decree provides like that.  It  is  only when  the sum realised on sale of the mortgaged property  is insufficient then the judgment-debtor can be proceeded  with personally.   But  the observations of the  court  in  Manku Narayana’s case (supra) that even if the two portions of the decree  are  severable and merely because a portion  of  the decretal  amount  is  covered by the  mortgage  decree,  the decree-holder per force has to proceed against the mortgaged property first are not based on any principle of law.   With all  due respect to the learned Judge, in the light  of  the observations  made  by  us earlier, we  are  constrained  to observe that Manku Narayana’s case (supra) was not correctly decided.      Mr.   Batra  on  behalf  of  the   respondent/guarantor submitted  that since the plaintiff/decree-holder  chose  to file  the suit at Sirsa only with  a view that the  mortgage property  is  situated  there, he  should,  therefore,  take recourse  to the execution of the mortgage decree  alone  in the first instance.  It will be noticed that we are  dealing with the matter at the execution stage and are not concerned with  the  correctness  or otherwise  of  the  decree  under execution.   Therefore,  this  submission  of  the   learned counsel has got no basis.  Learned counsel for the guarantor then brought to our notice the following decisions:-      Raja  Raghunandan  Prasad  Singh and  another  v.  Raja Kirtyanand Singh Bahadur, AIR [1932] P.C. 131. This case has not applicable to the                                                        1042 present case as it dealt with the construction of the surety bond furnished during appeal in a decree passed in a mortgage suit.      State of Madhya Pradesh v. Kaluram, AIR [1967] SC 1105. This  again has no relevance as it relates to  the  question when the security gets discharged.      The  Bank  of Bihar v. The State of Bihar  and  others, AIR  [1971] SC 1210. This was a case of pledge of the  goods and,  therefore,  has no relevance to the facts  of  present

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case.      Look Karan Sethia etc. v. Ivan E. John and others etc., [1977] 1 SCR 853 at 871.  This again was a case relating  to dissolution of partnership and for rendition of accounts.      The  State  Bank of Saurashtra v.  Chitranjan  Rangnath Raja  and another, AIR [1980] SC 1528.  It will  be  noticed that in this case plea was taken in the suit and the  matter was not relating to the execution of the decree.      State  Bank of India v. M/s. Saksaria Sugar Mills  Ltd. and  others, AIR [1986] SC 868.  In this case even when  the sugar  Mills  were taken over it was held  that  the  Bank’s rights  as  secured  creditors and their  remedies  are  not affected.      Deep  Chand  v.  Punjab National Bank  and  another,  1 [1990]   BC  50.  This  case  again  is  relating   to   the interpretation  of  the decree and has no relevance  to  the facts of the present case.      Kumar  Sudhendu Narain Deb v. Renuka Biswas (Mrs.)  and others.  This again has no application to the question posed before us.      The  guarantor in the present suit never took any  plea to  the  effect that  his liability is  only  contingent  if remedies  against the principle debtor fail to  satisfy  the dues  of the decree-holder.  If such a plea had  been  taken and  the court trying the suit had considered the  plea  and gave  any finding in favour of the guarantor, then it  would have been a different position.  But in the present case, on the  face of the decree, which has become final,  the  court cannot construe it otherwise than its tenor.  No.  executing court  can go beyond the decree.  All such pleas as  to  the rights which the                                                        1043 guarantor  had, had to be taken during trial and  not  after the decree while execution is being levied.      The  result  is  that the appeal  is  allowed  and  the impugned  orders of the High Court dated 23rd May, 1990  and of the learned Additional District Judge dated 5th May, 1989 are  set  aside  and it is held that  the  decree-holder  is entitled  to proceed against the guarantor (judgment  debtor No. 4) for the execution of the aforesaid decree.)      It  appears  that in pursuance of the  orders  of  this Court  dated  19th  February,  1990  respondent  No.  4  has furnished  a bank guarantee in favour of the  appellant-bank to  the extent of Rs. 70,000.  In view of the result of  the appeal,  the decree-holder bank will be entitled to  proceed against  judgment-debtor No. 4 to the extent of the decretal amount recoverable from the bank guarantee furnished by  him and also to proceed in execution in accordance with law  for the balance amount, if any. N.P.V.                                       Appeal Allowed.                                                  1