2004 (8) TMI 403

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....S. Chauhan, J. - This writ petition has been filed for restraining the respondents from making the recovery from the petitioners, who stood guarantor, and also for restraining them from holding the auction as published in the local newspapers. 2. The facts and circumstances giving rise to this case are that petitioners' brother Gautam Singh purchased a plot in 1998, and he had taken the loan of....

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....ers is not able to explain that if the recovery is being made from the estate of the deceased debtor, how the petitioners could have objection. A parrot like argument is made that petitioners are guarantors and thus no recovery can be made from them. 4. If the petitioners were the guarantors, their liability is co-extensive to that of the principal debtor. The issue was considered by the Hon'bl....

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.... or that the creditor may have relief against the principal in some other proceedings. 5. Likewise where the creditor has obtained a decree against the surety and the principal, the surety has no right to restrain execution against him until the creditor has exhausted his remedies against the principal...." (p. 298) 5. A Division Bench of Orissa High Court in Sukur Pradhan v. Orissa State Fi....

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....ntil the creditor exhausted his remedies against the principal debtor. Similar view has been reiterated in Dalichand v. State of Rajasthan AIR 1976 Raj. 112. 7. Thus, in view of the above, the legal position can be summarised that a surety is liable to the creditor in respect of the remedy which he may have against the principal debtor, and there is no bar for the creditor not to proceed agains....