# BHAGYODAY COOPERATIVE BANK LTD v. RAVINDRA BALKRISHNA PATEL DECEASED THROUGH HIS LRS & ORS

- **Citation:** [2022] 18 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2022-11-16
- **Case number:** Civil Appeal Nos. 8531-8532 of 2022
- **Bench:** K.M Joseph, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagyoday-cooperative-bank-ltd-v-ravindra-balkrishna-patel-deceased-through-his-35806
- **Pages:** 27

## Headnote

Gujarat Co-operative Societies Act, 1961 (GCoSA, 1961) -
Ss. 103, 103 (a) - Code of Civil Procedure 1908 - Ss. 38, 39, Or.
21, r.46A, Or. 26, r.46 - Limitation Act S. 5 - The Appellant-Bank
granted a financial facility to a firm (M/s. Vimal Traders, Partnership
Firm) of three partners (Respondents and one Gautam Vishnuprasad
Tripathi) - Amount was not repaid - Lavad Suit was filed in 1988
by the Appellant before the Board of Nominees u/ GCoSA 1961,
which held to make payment with interest p.a. from the date of suit
till realisation and cost of the suit to the Plaintiff (therein) - Matter
was adjudicated in the form of an arbitration proceeding -
Certificate contemplated u/s. 103(a) of the Act came to be issued on
17.09.1995 - Appellant filed execution application before Civil
Court - During pendency of said application, Jangam Warrant was
issued against Respondents (therein) for recovery - Appellant filed
an application seeking withdrawal of the Execution Application
with liberty to file the petition before the Court of competent
jurisdiction on the ground that the respondent had shifted the place
of residence - Withdrawal application was allowed on 02.02.2005
- On 19.01.2006, the Appellant-Bank filed an execution petition
before the 4th Additional Senior Civil Judge - Appellant had
obtained a decree against another partnership firm in which the
Respondents were partners alongwith one 'H' - Deemed decree
obtained against the said parties in previous Lavad Suit again under
the Act, was put to execution - Mother of respondents, who stood
as guarantor for the loan granted in the transaction which led to
Lavad Suit - Her property was put to sale in the Court auction -
After auction was held there was excess amount which belongs to
mother and lying in deposit - Based on the developments in the
other suit namely the holding of the Court auction in connection
A
B
C
D
E
F
G
H
2
SUPREME COURT REPORTS
[2022] 18 S.C.R.
with the enforcement of the liability of the mother as guarantor, an
application was filed on 24.01.2007 by Appellant - The purport of
the application appears to be to obtain satisfaction of the deemed
decree with reference to the amount which was realized in the Court
auction - Respondents filed objection, which was dismissed and
held that the amount to be deposited and the interest and cost be
come on the share of respondents herein - Respondent challenged
the order - High Court held that (Impugned Order) - a) The
execution application filed by Appellant is not maintainable as after
the first application was dismissed on default the application before
second execution court was not within period of limitation; b)
execution petition filed to get it transferred to second court was
done without an order u/s. 39 of CPC; c) without observing the
mandatory requirement i.e., to affords an opportunity to the person
aggrieved that is the garnishee to raise his objection to the
attachment the Execution Court had allowed the prayer under Order
21 Rule 46A - On appeal, held: Mere dismissal of the first
application on the ground of default may not result in the decree
holder being precluded from filing a fresh execution petition
provided it is within time - When the Authority passed the award
under the Act, it was a Civil Court - It is not a Court within the
meaning of Section 38 of CPC - For effective working of Section
39 of CPC, there must be a Court which has passed a decree - In
the context of the CPC there is no such Court within the meaning of
Section 38 in these cases instead, there was essentially arbitration
proceedings and what is passed by the said authority is clothed
only with the effect of a decree and it is enforceable as a decree -
Certificate being granted it resulted in a deemed decree - Words
'decree as defined in clause (2) s. 2 of CPC' as used in s. 103 of the
Act is to reinforce in the concept of a decree with greater clarity
and by way of abundant caution - The mere presence of these words
by itself cann

## Text

_Characters 0–39,949 of 63,419. This is a partial read: ask again with offset=39949 for what follows._

A
B
C
D
E
F
G
H
1
 [2022] 18 S.C.R. 1
1
BHAGYODAY COOPERATIVE BANK LTD.
v.
RAVINDRA BALKRISHNA PATEL DECEASED THROUGH
HIS LRS & ORS.
(Civil Appeal Nos. 8531-8532 of 2022)
NOVEMBER 16, 2022
[K.M JOSEPH AND HRISHIKESH ROY, JJ.]
Gujarat Co-operative Societies Act, 1961 (GCoSA, 1961) -
Ss. 103, 103 (a) - Code of Civil Procedure 1908 - Ss. 38, 39, Or.
21, r.46A, Or. 26, r.46 - Limitation Act S. 5 - The Appellant-Bank
granted a financial facility to a firm (M/s. Vimal Traders, Partnership
Firm) of three partners (Respondents and one Gautam Vishnuprasad
Tripathi) - Amount was not repaid - Lavad Suit was filed in 1988
by the Appellant before the Board of Nominees u/ GCoSA 1961,
which held to make payment with interest p.a. from the date of suit
till realisation and cost of the suit to the Plaintiff (therein) - Matter
was adjudicated in the form of an arbitration proceeding -
Certificate contemplated u/s. 103(a) of the Act came to be issued on
17.09.1995 - Appellant filed execution application before Civil
Court - During pendency of said application, Jangam Warrant was
issued against Respondents (therein) for recovery - Appellant filed
an application seeking withdrawal of the Execution Application
with liberty to file the petition before the Court of competent
jurisdiction on the ground that the respondent had shifted the place
of residence - Withdrawal application was allowed on 02.02.2005
- On 19.01.2006, the Appellant-Bank filed an execution petition
before the 4th Additional Senior Civil Judge - Appellant had
obtained a decree against another partnership firm in which the
Respondents were partners alongwith one 'H' - Deemed decree
obtained against the said parties in previous Lavad Suit again under
the Act, was put to execution - Mother of respondents, who stood
as guarantor for the loan granted in the transaction which led to
Lavad Suit - Her property was put to sale in the Court auction -
After auction was held there was excess amount which belongs to
mother and lying in deposit - Based on the developments in the
other suit namely the holding of the Court auction in connection
A
B
C
D
E
F
G
H
2
SUPREME COURT REPORTS
[2022] 18 S.C.R.
with the enforcement of the liability of the mother as guarantor, an
application was filed on 24.01.2007 by Appellant - The purport of
the application appears to be to obtain satisfaction of the deemed
decree with reference to the amount which was realized in the Court
auction - Respondents filed objection, which was dismissed and
held that the amount to be deposited and the interest and cost be
come on the share of respondents herein - Respondent challenged
the order - High Court held that (Impugned Order) - a) The
execution application filed by Appellant is not maintainable as after
the first application was dismissed on default the application before
second execution court was not within period of limitation; b)
execution petition filed to get it transferred to second court was
done without an order u/s. 39 of CPC; c) without observing the
mandatory requirement i.e., to affords an opportunity to the person
aggrieved that is the garnishee to raise his objection to the
attachment the Execution Court had allowed the prayer under Order
21 Rule 46A - On appeal, held: Mere dismissal of the first
application on the ground of default may not result in the decree
holder being precluded from filing a fresh execution petition
provided it is within time - When the Authority passed the award
under the Act, it was a Civil Court - It is not a Court within the
meaning of Section 38 of CPC - For effective working of Section
39 of CPC, there must be a Court which has passed a decree - In
the context of the CPC there is no such Court within the meaning of
Section 38 in these cases instead, there was essentially arbitration
proceedings and what is passed by the said authority is clothed
only with the effect of a decree and it is enforceable as a decree -
Certificate being granted it resulted in a deemed decree - Words
'decree as defined in clause (2) s. 2 of CPC' as used in s. 103 of the
Act is to reinforce in the concept of a decree with greater clarity
and by way of abundant caution - The mere presence of these words
by itself cannot support the attempt at distinguishing the principle
which is that in view of the fact that Sections 38 and 39 of the CPC
are not as such applicable, the decree-holder may seek to execute
the decree in any Court which otherwise has jurisdiction - In case
of debt, share and other property covered u/ Order 26 Rule 46
procedures begins with an attachment, but in this case there is no
attachment of debt in the form of money lying in the deposit, which
is not a manner to pass order with Order 21 Rule 46 A - In the
A
B
C
D
E
F
G
H
3
BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA
PATEL DECEASED THR. HIS LRS & ORS.
facts, therefore, the second execution petition is maintainable - The
filing of the second execution petition was not illegal for the reason
that there was no order under Section 39 of CPC - The filing of the
application under Order 21 Rule 46A and the order passed as such
by the Execution Court may be flawed.
Allowing the appeals, the Court
HELD: 1. Mere dismissal of the first application on the
ground of default may not result in the decree holder being
precluded from filing a fresh execution petition provided it is
within time. [Para 21][17-F]
2. The plea of limitation though pressed before the
Execution Court was not pursued by the Respondents before
the High Court. No doubt, a pure question of law may be permitted
to be raised in an appeal generated by the grant of special leave
under Section 136 of the Constitution of India. Section 103 of the
Act appears to contemplate that after the adjudication by the
Authorities, which would include any appeal carried therefrom,
the order passed, is to be certified by the Registrar or the
Liquidator. This would give birth to what is by way of a deeming
provision a decree of a Civil Court. In this case, an award was
passed in the year 1988 and the certificate was issued in the year
1995. As to when the application was made by the Appellant
seeking the certificate and what was the time taken by the
Authority to issue a certificate are all matters shrouded in mystery.
There is a case for the Appellant, no doubt, that the apprehension
of the learned Counsel for the Respondents that if the creditor
sleeps over the matter even for a period beyond time provided
for executing a decree and makes an application with great delay
then it would result in a completely inequitable situation may not
rise as the facts speak otherwise. [Para 22][17-G-H; 18-A-D]
3. The Respondents may not be justified in seeking to
distinguish the judgment of this Court Sundaram Finance Limited.
It cannot be in the region of doubt that when the Authority passed
the award under the Act, it was a Civil Court. It is not a Court
within the meaning of Section 38 of Code of Civil Procedure. If
there is no Court, which can be said to have passed the award in
this case, then it is inconceivable as to how it could be maintained
A
B
C
D
E
F
G
H
4
SUPREME COURT REPORTS
[2022] 18 S.C.R.
in the same breath that it is indispensable to the maintaining of
the execution proceedings in another Court that the Court which
passed the decree must necessarily transfer the proceedings to
the latter Court. For the effective working of Section 39 of Code
of Civil Procedure, there must be a Court which has passed a
decree. The words 'decree as defined in Clause (2) of Section 2
of Code of Civil Procedure' as used in Section 103 of the Act is to
reinforce in the concept of a decree with greater clarity and by
way of abundant caution. The mere presence of these words by
itself cannot support the attempt at distinguishing the principle
which has been laid down in the decision of Sundaram Finance
Limited which is that in view of the fact that Sections 38 and 39 of
the Code of Civil Procedure are not as such applicable, the decree
holder may seek to execute the decree in any Court which
otherwise has jurisdiction. This would mean that the finding by
the High Court in this regard is flawed and is liable to be
overturned. [Para 24][19-G-H; 20-A-E]
4. In this case, there is no attachment of the debt in the
form of the money lying in deposit. The order which is passed is
expressly made Under Order 21 Rule 46A. Certainly, this is not
the manner in which an order could have been passed within the
meaning of Order 21 Rule 46A. There is a definite scheme as
already noticed which is clear from the perusal of Order 21 Rule
46 and by the subsequent additions to the law by the amendment
of the year 1976 which is contained in Order 21 Rule 46A to
Order 21 Rule 46I. It would unerringly point to the provisions
being mandatory. Therefore, the High Court appears to be right
in its finding that the Execution Court should have first attached
the debt under Order 21 Rule 46 before proceeding to pass the
order under Order 21 Rule 46A of Code of Civil Procedure.
[Para 28][24-G-H; 25-A]
5. The filing of the second execution petition was not illegal
for the reason that there was no order under Section 39 of Code
of Civil Procedure. The filing of the application Under Order 21
Rule 46A and the order passed as such by the Execution Court
may be flawed. In the facts of this case, the more appropriate
A
B
C
D
E
F
G
H
5
order would have been one under Order 21 Rule 52 of Code of
Civil Procedure. The amount is lying in deposit with the same
Court in which the Appellant has moved the second application
for execution. It is directed that the order passed by the Execution
Court must be treated as an order by which the attachment has
been made Under Order 21 Rule 52 of Code of Civil Procedure.
By order dated 08.08.2022, this Court had permitted the
Respondents to withdraw the amount lying in deposit in excess
of Rs. 12 lakhs. It would thus be open to the Appellant to proceed
against the said amount, to the extent of Rs. 12 lakhs. The order
will be treated as an order of attachment. The Execution Court,
will therefore proceed with the matter in accordance with law.
However, the Respondents-Patel brothers had an opportunity to
raise objections before the Execution Court and the right which
is given Under Order 21 Rule 46C is for the benefit of the
garnishee. It is nobody's case that the Respondents-Patel
brothers are the garnishees. [Para 32][26-G-H; 27-A-D]
6. The Execution Court will however look into the
complaint of the Respondents that the Appellant has not properly
accounted with reference to the directions given by the Arbitrator
regarding the adjustment to be done of the amount which would
be due to the Respondents under an award obtained by them. It
is left open to the Execution Court to undertake the said exercise
and it is for the Execution Court to finally decide the exact amount
which is to be made available to the Appellant. The impugned
order is set aside. Appeals allowed. [Para 33][27-E-F]
Shivashankar Prasad Shah and Others Versus Baikunth
Nath Singh and Others 1969 (1) SCC 718: [1969] 3
SCR 908; Sundaram Finance Limited versus Abdul
Samad and Another (2018) 3 SCC 622: [2018] 10
SCR 451; Nuthalapati Kotaiah vs. Executive Officer
TTD Office at Guntu (1985) 3 AP LJ 103; The Madurai
City Municipal Corporation, represented by its
Commissioner, Madurai vs. N. Baskara Pandian &
another 1998 SCC Online Mad 75; Executive Engineer,
BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA
PATEL DECEASED THR. HIS LRS & ORS.
A
B
C
D
E
F
G
H
6
SUPREME COURT REPORTS
[2022] 18 S.C.R.
T. C. Division, K.S.E. Boards, Palghat versus J. H.
Sharma and another AIR 1988 Ker. 285 - referred
to.
Case Law Reference
[1969] 3 SCR 908
referred to
Para 14
[2018] 10 SCR 451
referred to
Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 85318532 of 2022.
From the Judgment and Order dated 27.03.2018 of the High Court
of Gujarat at Ahmedabad in Letters Patent Appeal No.2647 of 2017 in
Special Civil Application No.9619 of 2013.
Preetesh Kapur, Sr. Adv., Ms. Hemantika Wahi, Ms. Jesal Wahi,
Kabir Hathi, Advs. for the Appellant.
Aniruddha Deshmukh, Nikhil Goel, Advs. for the Respondents.
The Judgment of the Court was delivered by
K.M. JOSEPH, J.
Leave granted.
2. The woes of a decree holder begin after obtaining a decree. It
is in execution that a decree holder is confronted with an unimaginably
large number of obstacles. With the facts as unfolded in the course of
the judgment, we are reinforced in our belief that there is substance in
this complaint.
3. The appellant-Bank granted a financial facility to a firm (M/s.
Vimal Traders, Partnership Firm). There were three partners, namely,
Ravindra Balkrushna Patel and Nikhil Balkrushna Patel who are
brothers and the third person was Shri Gautam Vishnuprasad Tripathi.
Since the amount was not repaid, a Lavad Suit No.2265/1984 came to
be filed by the appellant-bank before the Board of Nominees under The
Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as
'the Act'). The adjudicatory body passed an order on 23.09.1988. The
operative portion of the order reads as follows: -
"The defendants to make payment of Rs.2,61,314.34ps.
with 20.5% interest p.a. from the date of suit till realisation
and cost of the suit to the plaintiff latest by 31.03.1989.
A
B
C
D
E
F
G
H
7
The garnish order passed below Exh.6 is made absolute
and the plaintiff is at liberty to execute the award against
the G.S.I.C. for the said amount of Rs.1,50,000/- taking
due process of law after 31.03.1989. Lavad fee of
Rs.510/- deposited by the plaintiff to be credited to the
Government as fees.
Award accordingly
Given and pronounced in open Court on 23.09.1988."
4. We may notice at this juncture itself Section 103 of the Act. It
reads as follows: -
"103. Money how recovered.- Every order passed by
the Registrar or a person authorised by him under
Section 93, or by the Registrar, his nominee or board of
nominees under Section 100 or 101, every order passed
in appeal under Section 102, every order passed by a
Liquidator under Section 110, every order passed by
the State Government in appeal against orders passed
under Section 110 and every order passed in revision
under Section 155, shall if not carried out,-
(a) on a certificate signed by the Registrar or
a Liquidator, be deemed to be a decree of a
Civil Court, as defined in clause (2) of Section
2 of the Code of Civil Procedure, 1908 and
shall, be executed in the same manner as a
decree of such Court, or
(b) be executed according to the provisions of
the Land Revenue Code and the rules
thereunder for the time being in force for the
recovery of arrears of land revenue:
Provided that, any application for the recovery in such
manner of any such sum shall be made to the Collector, and
shall be accompanied by a certificate signed by the Registrar,
or by any Assistant Registrar to whom the said power has
been delegated by the Registrar. Such application shall be
made within twelve years from the date fixed in the order
and if no such date is fixed, from the date of the order."
BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA
PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]
A
B
C
D
E
F
G
H
8
SUPREME COURT REPORTS
[2022] 18 S.C.R.
5. On the application apparently made by the appellant-Bank, the
certificate contemplated under Section 103 (a) of the Act came to be
issued on 17.09.1995. In view of the provisions of Section 103 of the
Act, since the order passed under Section 103 of the Act in this case is
to be executed in the same manner as a decree of a Civil Court as
defined in clause (2) of Section 2 of the Code of Civil Procedure, 1908
(For short 'CPC'), the appellant initially filed Execution Application
No.777/1995 before the City Civil Court, Ahmedabad. It would appear
that the notice was not served in the Execution Application No.777/1995
and the appellant according to it tried to serve the notice but it failed.
Thereupon, the Execution Court passed the following order on
22.10.1997, which reads as under:-
"When matter called out, neither darkhastdar nor his L.A.
is present. From the record, it appears that the darkhastdar
has not taken any effective steps since long. However, in
the interest of justice, darkhastdar is granted, time till
27.11.1997. If no effective step is taken till than the
darkhastdar- petition will stand automatically dismissed on
27.11.1997."
6. Still further, the appellant on 27.11.1997 gave a new address
and filed an application. It is the further case of the appellant that the
Court was not working and there was a strike and the case stood posted
to 10.12.1997. During the pendency of the Execution Application No.777
of 1995, a Jangam Warrant was issued against the respondents for
recovery of Rs.8,74,033.49/- by order dated 15.07.1998. On 02.02.2005,
the appellant-Bank filed an application seeking withdrawal of the
Execution Application with liberty to file the petition before the Court of
competent jurisdiction. This was occasioned according to the appellantBank by shifting of the residence of the respondents. According to the
appellant-Bank, the said application was allowed and the Execution
Application was permitted to be withdrawn by order dated 02.02.2005.
On 19.01.2006, the appellant filed an execution petition before the 4th
Additional Senior Civil Judge (Ahmedabad Rural).
7. At this juncture, we must notice another aspect. It would appear
that the appellant-Bank had obtained a decree against M/S. Virat Paper
Processors (a partnership firm) in which again Ravindra Balkrushan
Patel and Nikhil Balkrushna Patel (hereinafter for brevity 'Patel
brothers') were partners along with Hemant Balkrushna Patel (not a
A
B
C
D
E
F
G
H
9
party herein). It must be noticed that all the three were brothers though
the firm was a different firm. The deemed decree obtained against the
said parties in Lavad Suit No.576/1988 again under the Act, was put to
execution. It is here we must note another person whose role will become
clear i.e., Savitaben Balkrushna Patel (Deceased)-the mother of the
Patel brothers, who stood as guarantor for the loan granted in the
transaction which led to Lavad Suit No.576/1998. Her property was
finally put to sale in the Court auction. A sum of Rs.39,25,000/- was
fetched and it was lying in deposit. The mother of the Patel brothers
expired on 18.06.2005.
8. Resuming the narrative with reference to the developments in
the suit with which we are concerned, after filing of the execution petition
as it were by the appellant in the new Execution Court apparently based
on the developments in the other suit namely the holding of the Court
auction in connection with the enforcement of the liability of the mother
as guarantor, an application came to be filed on 24.01.2007. The purport
of the application appears to be to obtain satisfaction of the deemed
decree with reference to the amount which was realized in the Court
auction. We may only notice the prayer as we find from Annexure-P7
of the SLP paper book, which is as follows: -
"A. In connection with the Special Darkhast no.
80/99, the property of the opponents was sold by
initiating legal procedure and amount thereof to
the tune of Rs. 39,25,000/- rupees thirty Nine lacs
twenty five thousand only is deposited before the
Court in Special Darkhast no. 80/99 and after
deducting the outstanding amount in special
Darkhast no. 80/99 with interest and cost,
remaining amount is likely to be credited and that
amount is to be given to the opponents no. 2 and 3
thus, your honour may be pleased to pass order of
garnishi and direct the registrar/Nazir of the Court
of learned Civil Judge (S.D.) Saheb to deposited
the remaining credited amount in the said
execution.
B. Your honour may be pleased to pass such other
and further relief as may be deemed fit.
BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA
PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]
A
B
C
D
E
F
G
H
10
SUPREME COURT REPORTS
[2022] 18 S.C.R.
C. Your honour may be pleased to pass order to
send one copy of the order of this Garnishi
application to keep it in Special Darkhast no. 80/
99 pending before the Court of Shri BB Pathak
sahib, Civil Judge S.D. Ahmedabad Rural."
9. The Patel brothers who are judgment debtors in the instant
case filed their objections. After considering their objections, the Execution
Court passed the following order.
"Objection application Ex. 28 filed by the
opponents no. 2 and 3 is hereby dismissed.
Under the provisions of order 21 Rule 46A of
the CPC, the Registrar and Nazir of the Court of
Principal Senior Civil Judge Saheb, Ahmedabad
(rural) is hereby ordered to deposit the actual
remaining amount in this Darkhast after making
payment of the Darkhast, interest and cost come
on the share of opponent Ravindra Balkrishna
Patel and Nikhil Balkrishna Patel out of the
credited amount in Special Darkhast No.80-99.
This order has been declared today on this
10.04.2013 in the open Court."
It is this order which came to be challenged before the High Court
by the Patel brothers. The High Court by the impugned order has set
aside the order passed by the Execution Court. It is being aggrieved
thereby that the appellant-Bank is before us.
10. We heard Mr. Preetesh Kapur, learned senior counsel for the
appellant and also Mr. Aniruddha Deshmukh, learned counsel appearing
on behalf of the Patel brothers, including the partnership firm.
THE FINDINGS IN THE IMPUGNED ORDER
11. The High Court finds that the earlier execution petition filed in
the first Execution Court, namely, Execution Application No.777/1995,
having been dismissed, the application which is filed subsequently in the
year 2006 before the Second Execution Court, if we may describe it as
such was not maintainable. It is found that the first application having
been dismissed for default, the proper course would have been to approach
the said Court within the period of limitation. It is found that the said
A
B
C
D
E
F
G
H
11
order dismissing the execution application should have been set aside
within a period of 30 days since Section 5 of the The Limitation Act,
1963 is not available in execution proceedings, the subsequent execution
petition is barred.
12. Next, it is found that in view of Section 38 of CPC a decree
could be executed either by the Court which passed it or the Court to
which the decree was transferred. Section 39 of the CPC provides for
the exclusive mechanism by which the decree could be ordered to be
transferred. In the facts of this case, it was found there was no approach
made by the appellant-Bank to the Court in which the execution petition
was originally filed to get it transferred to the second Court in which
without an order under Section 39, the appellant-Bank filed the second
application in the year 2006. Therefore, the very petition filed before the
Execution Court on the second occasion was not maintainable.
13. Further, the Court elaborated on the flaw involved in the
application maintained under Order 21 Rule 46A of CPC and, more
importantly, the actual order that was passed thereunder. The reasoning
of the High Court is as follows: - Before an order is passed under Order
21 Rule 46A of the CPC, there must be an attachment of the debt.
There was no attachment of the debt within the meaning of Order 21
Rule 46 of CPC. It is found that Order 21 Rule 46 of CPC insisting on an
order of attachment as is clear from a perusal of Order 21 Rule 46A of
CPC serves a salutary purpose. It affords an opportunity to the person
aggrieved that is the garnishee to raise his objection to the attachment.
Valuable rights are vouchsafed to the garnishee and the right is to be
enforced through the mechanism of Order 21 Rule 46C. Order 21 Rule
58 provides for objection to attachment. A person aggrieved by an order
under Order 21 Rule 58 of CPC has further rights in the form of the
appeals as provided in law. In this case, it was found that without
observing the mandatory requirement of attachment it is that the Execution
Court had allowed the prayer under Order 21 Rule 46A. It must be
noticed that though the argument relating to the execution petition being
barred by limitation was pursued vigorously before the Execution Court,
it was not pressed before the High Court by the respondents.
CONTENTIONS OF THE PARTIES
14. Mr. Preetesh Kapur, learned senior counsel for the appellant
would with reference to the facts as we have noticed make the following
submissions. He would point out that the mere fact that the earlier
BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA
PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]
A
B
C
D
E
F
G
H
12
SUPREME COURT REPORTS
[2022] 18 S.C.R.
execution petition was dismissed would not stand in the way of the
processing and considering of the second execution petition. The execution
petition was dismissed only if at all on account of default. In fact, it was
withdrawn with liberty. But even if it is dismissed on default, in view of
the law laid down by judgment of this Court in 1969 (1) SCC 718,
Shivashankar Prasad Shah and Others Versus Baikunth Nath Singh
and Others, the second petition was maintainable. It was held as follows
in the said decision: -
"6. The courts in India have generally taken the view
that an execution petition which has been dismissed
for the default of the decree-holder though by the
time that petition came to be dismissed, the judgmentdebtor had resisted the execution on one or more
grounds, does not bar the further execution of the
decree in pursuance of fresh execution petitions filed
in accordance with law-see Lakshmibai Anant
Kondkar v. Rayji Bhikaji Kondkar, (XXXI, BLR
400). Even the dismissal for default of objections
raised under Section 47, Civil Procedure Code does
not operate as res judicata when the same objections
are raised again in the course of the execution-see
Bahir Das Pal and Another v. Girish Chandra
Pal, AIR 1923 Cal 287; Bhagwati Prasad Sah v.
Radha Kishun Sah and Others, AIR 1950 Pat
354; Jethmal and Others v. Mst. Sakina, AIR 1961
Raj 59; Bishwannath Kundu v. Smt. Subala Dassi,
AIR 1962 Cal 272. We do not think that the decision
in Ramnarain v. Basudeo, ILR XXV Pat 595 on
which the learned counsel for the appellant placed
great deal of reliance is correctly decided. Hence
we agree with the High Court that the plea of res
judicata advanced by the appellant is unsustainable."
15. The dismissal of the earlier execution petition on the ground
of default will not bar the filing of a fresh execution as long as the second
petition is filed within the period of limitation. In this case, limitation
would begin to run only on obtaining the certificate contemplated under
Section 103 of the Act. The certificate was obtained in the year 1995.
Therefore, the second execution petition filed in the year 2006 was well
A
B
C
D
E
F
G
H
13
within the period of 12 years and therefore the execution petition is not
barred. As far as the findings of the High Court that Sections 38 and 39
of the CPC governed the facts of the case, it is contended that the Court
has erred in not bearing in mind the following a vital feature present in
this case. This is not a case where a decree has been passed by a Civil
Court. What has happened is in terms of the Act on a claim by the
appellant-Bank which is a creditor the matter was adjudicated in the
form of an arbitration proceeding. At the end of the adjudication, the
plaintiff being successful, an award was passed. After the award is
passed, a certificate has to be applied for. The certificate is granted
under Section 103 of the Act. The certificate granted under Section 103
of the Act only results in the order passed becoming executable as a
decree. He further points out that even after the certificate is passed it
is not as if the order was a decree as such. All that the law provides is
that it is enforceable as a decree. He would submit that similar provisions
are contained in the Arbitration and Conciliation Act, 1996.
16. He drew our attention in this regard to the judgment of this
Court reported in Sundaram Finance Limited versus Abdul Samad
and Another, (2018) 3 SCC 622. Therein this Court was considering
the question which was similar to the question which arises in the facts
of this case, namely, whether the filing of the execution petition is governed
by the regime provided under Sections 38 and 39 of the CPC. We notice
the following, inter alia, discussion: -
"14. We would now like to refer to the provisions of the
said Act, more specifically Section 36(1), which deals
with the enforcement of the award:
"36. Enforcement. - (1) Where the time
for making an application to set aside the arbitral
award under Section 34 has expired, then, subject
to the provisions of sub-section (2), such award
shall be enforced in accordance with the
provisions of the Code of Civil Procedure, 1908
(5 to 1908), in the same manner as if it were a
decree of the court."
The aforesaid provision would show that an award is to
be enforced in accordance with the provisions of the said
Code in the same manner as if it were a decree. It is,
BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA
PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]
A
B
C
D
E
F
G
H
14
SUPREME COURT REPORTS
[2022] 18 S.C.R.
thus, the enforcement mechanism, which is akin to the
enforcement of a decree but the award itself is not a
decree of the civil court as no decree whatsoever is
passed by the civil court. It is the Arbitral Tribunal, which
renders an award and the tribunal does not have the
power of execution of a decree. For the purposes of
execution of a decree the award is to be enforced in the
same manner as if it was a decree under the said Code.
20. We are, thus, unhesitatingly of the view that the
enforcement of an award through its execution can be
filed anywhere in the country where such decree can be
executed and there is no requirement for obtaining a
transfer of the decree from the court, which would have
jurisdiction over the arbitral proceedings."
17. He would therefore submit that once second application was
not barred by limitation, a fresh execution petition could be filed in the
Court which would have jurisdiction. The jurisdiction of the second Court
would have to be determined with reference to the element of the
residence of the judgment debtors within the jurisdiction of that Court or
the existence of property as the case may be within the limits of the
Courts jurisdiction. As far as the finding that Order 21 Rule 46 of CPC
was observed in its breach before the Court passed the Order 21 Rule
46A of CPC, he would submit that the garnishee in the case is not the
mother of the Patel brothers. In fact, the mother as noticed had passed
away in the year 2005 and the application itself was filed only in the year
2007. The case of the appellant is that after the auction was held in
execution of the decree in the other suit filed by the appellant after
satisfying the decree debt in the said case, there was an excess sum. It
belonged to the mother and it was lying in deposit and as the mother
passed away, therefore, it became payable by the Court's Nazir to the
judgment debtors in the said case two of whom are the judgment debtors
being the Patel brothers involved in this case also. Therefore, the argument
is that it is the Court Nazir who is the garnishee as he was under an
obligation or debt to make payment of the said amount to the judgment
debtors which included Patel brothers involved in this case. He would
further submit that with reference to the wide powers available to the
Execution Court under Section 51 of CPC that at any rate it would be
A
B
C
D
E
F
G
H
15
highly unjust to deny the decree holder the fruits of its decree and to
proscribe the Court from getting at assets of the judgment debtors which
were lying in a deposit in the same Court. In other words, the proceeds
of the Court auction after satisfying the decree debt of the appellant in
the other case and payable to the judgment debtors after death of the
guarantor (mother) was lying in deposit of the second Execution Court.
On the strength of the powers available under Section 51 as also inherent
power under Section 151 of CPC, the Court must be ceded the power to
make available the said amount for appropriation by the decree holder.
18. Per-contra, learned counsel for the respondents, Mr.
Aniruddha Deshmukh stoutly opposes the contentions. He would point
that as far as the interpretation placed under Sections 38 and 39 of CPC
by the High Court is concerned it is unexceptionable. When confronted
with the judgment of this Court, in Sundaram Finance Limited (supra)
relied upon by the learned counsel for the appellant, he would make an
attempt at distinguishing the said judgment. This attempt is bolstered
with reference to the words 'decree as defined in clause (2) of Section
2 of CPC' as found in Section 103 of the Act. He would submit that this
distinguishable text of the Act with which this Court is concerned may
render the principle laid down by the judgment of this Court not applicable.
He would further point out that the High Court was entirely right in its
interpretation of Order 21 Rule 46 and Order 21 Rule 46A. He supported
his contention in this regard to three judgments of the High Courts which
are as follows: - Nuthalapati Kotaiah vs. Executive Officer TTD Office
at Guntur, (1985) 3 AP LJ 103, The Madurai City Municipal
Corporation, represented by its Commissioner, Madurai vs. N.
Baskara Pandian & another, 1998 SCC Online Mad 75 and
Executive Engineer, T. C. Division, K.S.E. Boards, Palghat versus
J. H. Sharma and another, AIR 1988 Ker. 285. He would submit that
Order 21 Rule 46 read with Order 21 Rule 46A of CPC and the provisions
which succeed these provisions enact a scheme which is intended to
safeguard the interest of the garnishee. Any deviation from the mandatory
regime will reach grave injustice to the garnishee as found by the High
Court and also echoed in the judgments relied upon by him. He would
further point out that Order 21 Rule 52 of CPC provides for the procedure
to be followed in a case like the present. Order 21 Rule 52 of CPC,
reads as follows: -
BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA
PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]
A
B
C
D
E
F
G
H
16
SUPREME COURT REPORTS
[2022] 18 S.C.R.
ORDER 21 RULE 52:-
52. Attachment of property in custody of Court or public officer.-
Where the property to be attached is in the custody of any Court or
public officer, the attachment shall be made by a notice to such Court or
officer, requesting that such property, and any interest or dividend
becoming payable thereon, may be held subject to the further orders of
the Court from which the notice is issued:
Provided that, where such property is in the custody of a Court,
any question of title or priority arising between the decree-holder and
any other person, not being the judgment-debtor, claiming to be interested
in such property by virtue of any assignment, attachment or otherwise,
shall be determined by such Court.
19. He would submit that since the appellant is not pursuing a
case based on the mother (deceased) being a garnishee and if the further
case based on the Court Officer being a garnishee falls to the ground,
the only express provision which must be understood as giving effect to
the residuary clause found in both Section 51 of CPC and Order 21 Rule
11 must be followed. Section 51 of the CPC, inter alia, provides as
follows: -
51. Powers of Court to enforce execution.-Subject to such
conditions and limitations as may be prescribed, the Court may, on the
application of the decree-holder, order execution of the decree-
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without
attachment of any property;
(c)by arrest and detention in prison [for such period
not exceeding the period specified in Section 58,
where arrest and detention is permissible under
that section];
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief
granted may require:
20. In similar vein, we find that when an execution petition is filed,
the applicant is obliged to specify the nature of the relief which he seeks.
Not unnaturally there is replication of the words 'such other manner as
A
B
C
D
E
F
G
H
17
may be needed'. He would still further point out that Order 21 Rule 46A
of CPC was not available to the appellant for another formidable reason.
Order 21 Rule 46 expressly is inapplicable in regard to movable property
not in the possession of the judgment debtor where the property is
deposited in or in the custody of the Court. Therefore, it is contended
that if money fetched in a Court auction can be described as property
and it is deposited in the Court then in view of the express provision of
Order 21 Rule 46, it is not applicable. The scheme of Order 21 Rule 46
followed by Order 21 Rule 46A may not be available and this may have
to be dealt with under Order 21 Rule 52. He would finally conclude by
contending that on the facts there is another obstacle for the appellant to
realise the fruits of the decree. It is submitted that a perusal of the
award by the authority under the Act would reveal that the judgment
debtors have obtained an award against a third party. It was ordered in
the award that the appellant would be entitled to execute the said award
in realizing the amount which was awarded in favour of the appellant in
this case. This has not been accounted for. It is pointed out that the said
process would necessarily have to be undertaken even if this Court is
inclined to grant any relief to the appellant.
FINDINGS
21. The first question we have to consider is whether the dismissal
of the execution petition filed by the appellant apparently on the ground
of default or withdrawal of the first execution petition will result in a bar
for the filing or the prosecuting of the Second execution petition. In this
regard, in fact, we must notice that the learned counsel for the respondent
does not seek to raise any objection as such to the contentions of the
appellant that the second execution application would be maintainable
provided it is within the period of limitation. We also find merit in the
contentions of the appellant that the mere dismissal of the first application
on the ground of default may not result in the decree holder being
precluded from filing a fresh execution petition provided it is within time.
22. This brings us to the aspect of limitation. The plea of limitation
though pressed before the Execution Court was not pursued by the
respondents before the High Court. No doubt, a pure question of law
may be permitted to be raised in an appeal generated by the grant of
special leave under Section 136 of the Constitution of India. We may
only observe that what Section 103 of the Act contemplates is grant of
certificate signed by the Registrar or the Liquidator. This is to be preceded
BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA
PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]
A
B
C
D
E
F
G
H
18
SUPREME COURT REPORTS
[2022] 18 S.C.R.
by the requirement of words 'shall if not carried out'. In other words,
what Section 103 of the Act appears to contemplate is that after the
adjudication by the Authorities which would include any appeal carried
therefrom, the order passed, inter alia, is to be certified by the Registrar
or the Liquidator. This would give birth to what is by way of a deeming
provision a decree of a Civil Court. In this case, we may only notice that
an award was passed in the year 1988 and the certificate was issued in
the year 1995. As to when the application was made by the appellant
seeking the certificate and what was the time taken by the Authority to
issue a certificate are all matters shrouded in mystery.