NDLI: Bhagyoday Cooperative Bank Ltd. Vs. Ravindra Balkrishna Patel Deceased Through His Lrs & Ors

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	r.46 – Limitation Act S. 5 103 (a) - Code of Civil Procedure 1908 – Ss. 38 r.46A 39 Or. 21 1961) – Ss. 103 1961 (GCoSA Or. 26 Gujarat Co-operative Societies Act
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
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 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 46A – In the 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.
Judge	Hon'ble Mr. Justice K.M. Joseph
Neutral Citation	2022 INSC 1210
Petitioner	Bhagyoday Cooperative Bank Ltd.
Respondent	Ravindra Balkrishna Patel Deceased Through His Lrs & Ors
SCR	[2022] 18 S.C.R. 1
Judgement Date	2022-11-16
Case Number	8531

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Bhagyoday Cooperative Bank Ltd. Vs. Ravindra Balkrishna Patel Deceased Through His Lrs & Ors

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Bhagyoday Cooperative Bank Ltd. Vs. Ravindra Balkrishna Patel Deceased Through His Lrs & Ors

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