This Appeal has been filed by the petitioners challenging the judgment dated 24-07-2014 in W.P. (C ) No. 13555 of 2014. Petitioners are, admittedly guarantors in respect of a chitty transaction by which the 4th respondent became liable to pay substantial amounts to the 3rd respondent. Revenue recovery proceedings were initiated against the mortgaged properties belonging to the petitioners. They have approached this Court contending that the 4th respondent, the principal debtor is having ownership and possession of 83 cents of property which will be sufficient for discharging the said liability. The said property had been attached by the revenue authorities, but no action has been taken for effecting sale in collusion with the 3rd respondent. 2. The learned Single Judge found that since the property of the petitioners have been mortgaged, nothing prevents the revenue authorities in proceeding against the said property irrespective of any attachment of the property belonging to the 4th respondent. Accordingly, the Writ Petition was dismissed.
3. Learned counsel for the appellants contend that the learned Single Judge ought to have directed the Revenue Authorities to proceed against the property of the principal debtor before proceeding against the mortgaged property.
4. Heard the learned counsel for the appellants as well as the learned counsel appearing for the Kerala Financial Enterprises/3rd respondent.
5. It is brought to the notice of this Court by the learned counsel for the third respondent that the principal debtor had been granted sufficient time to settle the liability. Even the 4th respondent had approached this Court in which he was permitted to discharge the liability, which comes to about one crore by permitting payment of the amount, in 10 equal monthly instalments. There is absolute non-compliance of the directions issued by this Court. As far as the attached property of the 4th respondent is concerned, the said property was sold to another person and though the same was held to be invalid, the matter is now pending before the Land Revenue Commissioner. Hence, it is not possible for the revenue authorities to proceed against the said property.
6. But it is relevant to note that as far as the mortgaged property is concerned, it shall always be open for the mortgagee to proceed against the property for recovering the amounts due. In such circumstances, the other properties of the principal debtors shall be proceeded only after proceeding against the mortgaged property. Hence, we are not inclined to interfere with the judgment of the learned Single Judge. The learned counsel for the appellants, however, submits that if they are given sufficient time, they shall discharge the liability. According to him, unless the property mortgaged is sold by private sale, they will not be in a position to discharge the liability. If the appellants have any purchaser to purchase the property and if the claim is genuine, it shall always be open to respondents 2 and 3 to permit such private sale on condition that the proceeds of the sale shall be deposited before the revenue authorities to discharge the said liability.
This Writ Appeal is disposed of as above.
Sd/- ASHOK BHUSHAN , Ag. CHIEF JUSTICE
ani/
Sd/- A.M.SHAFFIQUE, JUDGE