1. The 1st respondent filed OS. No. 178 of 1997 in the Court of the Principal Junior Civil Judge, West and North, RR district, against the petitioner (defendant No. 2), 2nd respondent (defendant No. 1) and two others, for recovery of a sum of Rs. 28,000/- with costs and interest.
2. The 1st respondent is a Chit Fund Company and the 2nd respondent is a subscriber for a chit of Rs. 50,000/-. The petitioner and two others are the guarantors. The 2nd respondent remained exparte and the suit came to be decreed on 8-6-1999.
3. The 1st respondent filed EP. No. 247/99. The Executing Court passed an order dated 28-7-1999 ordering attachment of salaries of all the four defendants (petitioner, 2nd respondent and two others each to an extent of Rs. 10,138/-. It is this order that is challenged in this revision by the 2nd defendant in the suit.
4. Heard the arguments of Sri V. Durga Nageswara Rao, Advocate, appearing for Sri S. Venkata Subba Rao, learned Counsel for the petitioner.
5. It is evident that the trial Court decreed the suit and the liability of the defendants was joint and several. When the liability of the defendants is joint and several, it does not mean that all the defendants should equally share the decretal liability. It only means that the decretal amount can be recovered from any of them and discharge of the liability under the decree by any one would discharge the remaining Judgment Debtors (JDRs). It is open to the decree holder to choose to proceed against any of the JDRs against whom the liability is joint and several. It was not open to the Executing Court to distribute the liability. It was not as if all the four defendants have borrowed the amount. The principal liability is only that of the 1st defendant i.e, the 2nd respondent herein and other defendants are only guarantors. Once the 1st respondent had initiated execution proceedings against JDR No. 2. It was not open to him to simultaneously proceed against the guarantors also.
6. The order passed by the Executing Court, in so far as it has distributed and divided the decretal amount among the JDRs, cannot sustain in law. The joint liability is different from joint and several liability. While in the former, the persons are liable to the extent of their fixed share, in case of the latter; the discharge by one would enure to the benefit of all. Distribution of joint and several liability in equal shares against all the JDRs is opposed to the very concept of joint and several liability. Therefore, the order under revision is set aside. The Civil Revision Petition is accordingly allowed. No costs.