' Ghulam Nabi son of Khushi Muhammad, the petitioner, who is admittedly a guarantor of a running finance facility provided to one Ali Akbar, Proprietor M/s. Ghazi Bricks, through the present writ petition has challenged the orders, dated-27-5-2000, 30-6-2000 and 23-4-2001, whereby the Judge, Banking Court, Gujranwala, in execution of a money decree, issued bailable warrants of the petitioner and the aforesaid Ali Akbar.
2. The facts culminating to the filing of the present petition, as statel in the writ petition, are that a running finance facility amounting to Rs,2,00,000, which was subsequently enhanced to Rs,3,00,000, was availed by one Ali Akbar, Proprietor M/s. Ghazi Brick:, and for the repayment of the said finance facility, the petitioner stood as guarantor and executed certain documents. As the finance facility could not be repaid, therefore, the respondent-Bank filed a suit for recovery of Rs,5,52,199 against M/s. Ghazi Bricks and the petitioner, which was decreed ex parte on 8-4-1997. Pursuant thereto execution proceedings were commenced and during the said proceedings the learned Judge, Banking Court, issued bailable warrants of both the judgment-debtors vide order dated 27-5-2000 and 30-6-2000. Aggrieved by the aforestated orders, the petitioner, through his learned counsel, submitted an application before the executing Court praying therein that the recovery of the amount may be directed only against the original loanee, as he has got sufficient property, including a brick-kiln. The said application was dismissed by the learned Banking Judge vide order dated 23-4-2001. In the present Constitutional petition the petitioner has challenged the order dated 27-5-2000, 30-6-2000 and 23-4-2001 on the plea that these are illegal and inoperative.
3. Admittedly the first two impugned orders were passed on 27-5-2000 and 30-6-2000, whereas the present writ petition was filed on 5-5-2001 i.e, after the lapse of nearly one year. According to the petitioner he has not earlier assailed these orders before any forum and this is for the first time that he has challenged these orders alongwith the order dated 23-4-2001 in the present petition.
Obviously, the petitioner slept over the matter and acquiesced to the said orders for a considerable period of almost one year. Delay of one year, in challenging the aforesaid two orders, in the attending circumstances, is fatal to the present petition, moreso when the said delay has not at all been explained either in the writ petition or by the learned counsel arguing the case. Such an unexplained delay definitely has effect on the grant of discretionary relief. It is true that law of limitation does not apply to the petitions filed under Article 199 of the Constitution o Islamic Republic of Pakistan, 1973, yet the aggrieved party must show diligence in availing the remedy. I am of the considered view that so far as two orders, under discussion, are concerned, the petition in hand is hit by principle of laches and is liable to be dismissed on this short ground. However, as alongwith the said two orders another order dated 23-4-2001 has also been challenged, therefore, the learned counsel of the petitioner was also heard on merits.
4. The learned counsel for the petitioner has contended that initiation of recovery proceedings in execution of a money decree, against the petitioner, in the presence of the principal debtor, who has got adequate and sufficient property to satisfy the decree, are not valid and the same ought to have been directed only against the principal debtor. It is further argued that the petitioner did not avail any loan/finance facility from respondent No,2 and only stood guarantor for the repayment of loan, in case principal debtor commits default, therefore, the decretal amount should be recovered from the principal debtor. The arguments of the learned counsel are devoid of any force.
Admittedly, the petitioner stood as a guarantor for a financial facility availed by the principal debtor, which has not been repaid and the respondent-Bank had to file a suit for recovery which was decreed as far back as on 8-4-1997, which decree has attained finality and the consequent execution proceedings are underway before the Banking Judge. It may be highlighted that even in the execution proceedings, which commenced on 7-11-1997, not even a single rupee could be recovered, most probably due to dilatory tactics adopted by the petitioner and the other judgment-debtor, and the present petition appears to be a futile effort in the same direction.
Notwithstanding the fact that the petitioner did not avail any finance facility and was a guarantor only, now the petitioner is equally a judgment-debtor and under the law the decree can be executed against all or any of the judgment-debtors, at the option pfithe decree-holder.
5. So far as another limb of argument of learned counsel is concerned, section 128 of the Contract Act provides complete answer to that. It would be advantageous to reproduce the said provision of law: "128. Surety's liability.---The liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract."
'Under section 128 of the Contract Act, (ibid) the liabilities of the principal debtor and the surety are coextensive, therefore, the petitioner, claiming himself to be a guarantor, cannot shirk from the liabilities incurred by him through the execution of the different documents and the rigors of the decree. It is, of course, the prerogative of the decree-holder to recover the decretal amount in any manner, provided by law, from any or all of the judgment-debtors, who have no right to suggest, from whom the decree is to be satisfied. The petitioner being one of the judgment-debtors is equally liable to pay the decretal amount and the respondent-Bank has validly and legally initiated the execution proceedings against the petitioner and the other judgment-debtor for realizing the decretal amount through the process of the Court. Needless to mention that in case the entire decretal amount or any portion thereof is recovered from the petitioner being a guarantor/ judgment-debtor, the petitioner is not, in any way, remediless and in such-like circumstances section 140 of the Contract Act adequately safeguards the interest of a guarantor/surety, who is made to pay any amount on behalf of principal debtor. Section 140 of the Contract Act is reproduced below:- "140. Rights of surety on payment or performance.---Where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety, upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor."
'Under section 140 of the Contract Act, (ibid), if a surety pays the amount in place of principal debtor, then upon payment, such a guarantor/surety acquires all the rights of a creditor as against the principal debtor. Therefore, in case decree is executed against the petitioner, he will not in any way to be prejudiced, as he will subsequently step in the shoes of creditor and can recover the amount from principal debtor, so realized by the Bank from the petitioner in execution of the decree.
6. It has next been contended by the learned counsel that in execution proceedings, the property of the petitioner has been attached and simultaneously the warrants of arrest of both the judgment- debtors have been issued. According to the learned counsel this course of action is not permissible under the law, hence, not sustainable. The said argument of the learned counsel is not well- founded. It is well-settled that simultaneous execution of a decree from the person and property of a judgment-debtor is permissible. Under the provisions of Order, XXI, Rule 30, C.P.C. The executing Court, is well within the powers to order execution simultaneously against the person and the property of all or any of the judgment-debtors. Said provision of law is reproduced below:- "30. Decree for payment of money. ---Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in (=) prison of the judgment-debtor, or by the attachment and sale of his property, or by both."
' Above findings are fortified by the following case-law.
' It has been held in the case of Syed Muhammad Hussain Shah v. Cooperative Society for Loans of Shahpur City (AIR (30) 1943 Lahore 166) that ordinarily, if two remedies are available to a decree- holder and he wishes to avail himself of both, the Court should, as far as possible, try and give him both the remedies. It has also been held in the case of Nazir of the High Court of Sindh and Baluchistan, Karachi v. Messrs Haji Muhammad Ishaq, Dost Muhammad (1981 CLC 372) that Order XXI, Rule 30, C.P.C. Permits simultaneous execution against the property as well as person of the judgment-debtor.
7. Admittedly, a decree for the recovery of Rs,5,52,199 was passed as far back as on 8-4-1997 for realization of which an execution petition was filed on 7-11-1997 but it appears that on account of various devices adopted by judgment-debtors the desired results could not be achieved by the decree-holder and money decree remains unsatisfied. The public money is being withheld by the judgment-debtors for such a long time without any legal justification, which cannot be appreciated under any stretch of imagination. Moreover, the petitioner is seeking an equitable relief, but has not come to the Court with clean hands, hence not entitled to any discretionary relief.
8. In the above perspective, it appears necessary to take note of the provisions of Order XXI, Rule 21, C.P.C. Whereunder a discretion has been conferred on the executing Court to decline simultaneous execution against the person as well as property of a judgment-debtor. Under the said provision of law and executing Court has discretion to restrict the decree-holder to one mode of execution i.e, either against the person or against the property of the judgment-debtor. Needless to mention that such a discretion should be exercised by a Court on the basis of established judicial principles and obviously the exercise of discretion should not be arbitrary and fanciful. Under the circumstances of the present case, as narrated above, I am of the considered view that in the instant case the Banking Court has rightly exercised its discretion, while initiating simultaneous execution of the decree, therefore, I am not inclined to interfere in the discretionary powers exercised by the Judge, Banking Court.
9. In view of what has been discussed above, and for the reasons noted above, the petitioner has failed to make out any case entitling the exercise of discretionary powers under Article 199 of the Constitutional of Islamic Republic of Pakistan, 1973, therefore, I am not inclined to exercise Constitutional jurisdiction. The petition has no merits and the same is hereby dismissed in limine.