J.M. Srivastava, J.

1. This revision is directed against the order dated 16.4.84 passed by the Asstt. District Judge Gauhati refusing to set aside the order dated 30.3.1984 in an execution matter.

2. The Decree holder Plaintiff the opposite party herein had filed suit for recovery of loan money from M/s. Everest Cycle Limited, where in the present petitioner the State of Assam was defendant No. 2 as guarantor of the said loan, which was T.S. No. 22 of 1978 of the Court of Asstt. Dist. Judge No. 1 Gauhati. The suit was decreed ex parte on 27.6.80 against the defendants for recovery of Rs. 22,53.515 22 together with interest @ 15% per annum. The Decree Holder, Bank put the decree in execution being Execution Case No. 5/82 against the present Judgment Debtor petitioner. The warrants of attachment of money were issued to the Manager, State Bank of India, Gauhati Branch and Manager, State Bank of India, Dispur Branch.

3. The petitioner filed application U/O 9 R. 13 of the Code of Civil Procedure hereafter the Code, to set aside the ex parte decree which was Misc. Case No. 35/87. The petitioner also filed an application and stated that institution of the suit and the Execution Case were not in its knowledge and hence it could not take steps at the time and that the warrant of attachment had affected public interest, caused loss and hardship to the petitioner and prayed for stay of the execution case No. 5/82 and or withdrawal of the warrants of attachment issued in the said Title Execution Case. The Court however on 11.4.84 directed issue of fresh warrants of attachment.

4. After hearing the learned counsel for the parties the Court by order dated 16.4.84 impugned in this revision refused to set aside the Court's order dated 30.3.84 and rejected the application.

5. Aggrieved, the Judgment Debtor State of Assam has come in revision and Shri P.K. Goswami, learned Advocate General, Assam has submitted that the Decree Holders-O.P. should have proceeded in execution against the Principal Debtor defendant who had taken the loan and that execution of decree against the guarantor i.e. the present petitioner was not permissible in law; that the application for setting aside the exparte decree was pending, and the execution court, was not justified in not staying the execution of the decree; that public money and public interest was directly affected, and hence the execution court should not have allowed execution of decree against the `guarantor' leaving the principal debtor M/s. Everest Cycle Company, even though there was material on record to show that it had sufficient property from which the decretal amount could be realised that under the provisions of The Assam State Industrial Relief Undertakings (Special Provisions) Act, 1984 thereafter `the Act' the decree could not be executed during the period, specified in the notification of the Govt. of Assam U/S 3 of the Act and finally that for the ends of justice this court should direct that the Decree Holder should first exhaust its remedy against the principal debtor.

6. Shri K.L. Jain, learned counsel for the D.H.O.P. has refuted the submissions for the petitioner, and has urged that there is no ground for interference with the execution of the decree. Shri Jain also submitted that the application for setting aside the exparte decree has been dismissed.

7. I have considered the submissions for the parties. The exparte decree in question is for recovery of money.

8. The submission for the petitioner that the decree in execution was an exparte decree and application to set aside the exparte decree was pending and hence the execution should not have proceeded is not tenable in law. An exparte decree until it is set aside is a decree, that can be executed and there can be no reasonable objection in law to its execution only on the ground that it is an exparte decree and application to set aside the exparte decree was pending. Where therefore, as in the present case, the Court below has proceed required with execution, it should not be said, that the Court has committed any error in exercise of its jurisdiction, as may require interference by this Court in its revisional jurisdiction.

9. The next submission for the Petitioner is that the petitioner being only the guarantor, the decree should first be executed against the principal debtor and not the guarantor petitioner. Shri P.K.. Goswami, learned Advocate General has referred to the Execution application, to section 51, section 60 and Order XXI of the Code, to contend that the Decree Holder should first exhaust remedy against the principal debtor and has relied on Union Bank of India vs. Manku Narayan. AIR 1987 SC 1078 [LQ/SC/1987/347] .

10. The submission should not be accepted because the decree was also against the surety or guarantor i.e. the present petitioner, on the basis of the contract of guarantee executed by the petitioner in favour of the Bank Decree Holder. The execution of decree against the J.D.-petitioner could not be said to be in erroneous exercise of jurisdiction by the execution court, for there is no bar or restriction in any of the provisions of the code referred for the petitioner, which may lead to the necessary inference that the Decree Holder has to proceed and exhaust remedy against the principal Debtor in the first instance, before the decree can be executed against the surety Judgment debtor. The decree in my opinion can be executed against all or any one of the Judgment debtors as may be the Decree Holder's choice, there being no law that where there are more than one Judgment Debtor the Decree Holder has to execute the decree against judgment debtors in some particular sequence.

11. In Union Bank of India (Supra) the principal Debtor had borrowed money from the Bank on the strength of Surety (guarantee) and had also executed mortgage deed of property. A composite decree was passed also declaring the amount due on mortgage; the bank executed the decree against the guarantor which was resisted on the plea that the bank should proceed first against the mortgaged property and the principal debtor. It was held:

"4. 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 holding that the High Court was in error in making the direction which is under challenge before us. The appeal, under these circumstances, has therefore to be dismissed."

HA. Shri P.K. Goswami, learned Counsel for the petitioner has argued that the above decision had considered Bank of Bihar vs. Damodar AIR 1969 SC 297 [LQ/SC/1968/202] cited for the opposite party Bank and being a later decision should prevail. Shri K.L. Jain learned counsel for the Opposite party bank has argued that Bank of Bihar (supra) had specifically laid down that execution against guarantor, without proceeding against the principal debtor, was maintainable because the decree against the guarantor is on the strength of the contract of guarantee, independently of the principal debtor and that the ratio laid down there-in, was not even questioned in the Union of India (Supra) and that the Bank of Bihar decision was a three Judge decision and view laid down therein could not be considered as reversed or even modified by the two Judges decision in Union Bank (Supra). In Bank of Bihar (Supra) it was held:

"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 a 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 impugned direction can not be justified under Order 20, Rule 11(1). Assuming that apart from Order 20, R. 11(1) the Court bad the inherent power under section 151 to direct postponment of execution of the decree, the ends of justice did not require such postponment."

12. In the present case there was no mortgage of property of the principal debtor. The fact that the principal debtor had some land, which could be attached in execution of decree, therefore, is not quite material or of any consequence, for the determination of the question raised. In Union Bank (Supra) though Bank of Bihar was referred, the ratio of the latter was not questioned and the decision proceeded essentially, so it appears, on the consideration that there was a composite decree, against mortgaged property also. The ratio laid down in Bank of Bihar by a larger bench though earlier in my opinion shall still be the law as laid down by the Supreme Court.

13. Shri P.K. Goswami, learned counsel for the petitioner has argued that the contract of guarantee was not a contract being without consideration and could not be enforced. It is difficult to accept the argument for it can not be said that the contract was without consideration, because the bank had advanced the loan to the principal debtor for the consideration that guarantee was given by the petitioner without which the loan possibly would not have been given. It is therefore not possible or reasonable to accept the contention that there was no consideration for the contract of guarantee.

14. I think no illegality wag committed in proceeding in execution against the guarantor judgment debtor, without exhausting remedy against the principal debtor.

15. As to the next submission that the petitioner being the State public money was involved and for that reason execution against it should not proceed in the first instance, the Decree Holder is also a bank and its money too is public money. The petitioner being Judgment Debtor, consideration of `public money' being involved, can not justifiably stand in way of execution of decree against the petitioner. The fact that in execution of the decree in pursuance to attachment, public money has been attached and public interest has adversely been affected, for the same reason can not be a ground for not executing the decree.

16. The petitioner Government had issued notification under section 3 of the Act and it was submitted that in view of the notification issued action in execution of decree against the principal debtor or the petitioner could not be taken. The learned counsel for the Opposite party has refuted the contention on several grounds, such as, that the industry concerned M/s Atlas Cycle Co. the principal debtor had been liquidated and wound up, that the notification filed was for one year and subsequent notifications were not even proved to have been issued, that the issue of notification was fraudulent exercise of power and that in any case the benefit could not be claimed by the petitioner who was guarantor and not the industry entitled to relief under the Act.

17. The notification under section 3 of the Act was issued in April 1984 and under the proviso to section 3, even though it could be issued again it could not be in force in all for more than five years i.e. from April 1989 or May 1989 it has ceased to be in force. As such the benefit claimed under the said law, does not now survive after the lapse of five years from the date it was first issued in April/May, 84. Moreover, the relief under the said law was meant for relief to industrial undertaking, to free them for a short period from certain financial obligation etc. Sec. 3 provided for Declaration of Relief Undertaking. Section 4 empowered the State Government to exempt `such undertaking' from application of some laws contracts and agreement. The petitioner State Government was guarantor and even though-the principal debtor under the notifications issued could claim the benefit the petitioner guarantor, I think could not claim the benefit, for the simple reason that the relief under the Act was not meant for guarantor `State' even though a Government Company if it had given guarantee could be `relief undertaking' under Sec. 2(5)(b) or the Act.

18. In so far as the last submission is concerned I think the interest of justice do not require that the execution of the decree should be directed to be taken first against the principal debtor. The petitioner had stood surety and it is only fair and proper that the petitioner should honour the guarantee it had given. The interests of justice do not require any direction as has been urged for the petitioner, who may seek appropriate remedy, which shall be open and available, against the principal debtor.

For the aforesaid reasons this petition fails and is dismissed, Stay order if any is vacated. The records be returned immediately.