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SUPREME COURT OF INDIA
K.M. JOSEPH, HRISHIKESH ROY, JJ.
Bhagyoday Cooperative Bank Ltd. – Appellant
Versus
Ravindra Balkrishna Patel Deceased through his LRs. and Others – Respondents
Civil Appeal Nos. 8531-8532 of 2022, SLP (Civil) No. 21943-21944 of 2018
Decided On : 16-11-2022
DECREE HOLDER - EXECUTION OF DECREE - THE GUJARAT CO-OPERATIVE SOCIETIES ACT, 1961, SECTION 103 - The judgment discusses the woes of a decree holder in execution and the obstacles faced. The appellant-Bank granted a financial facility to a firm and filed a Lavad Suit No. 2265/1984 before the Board of Nominees under The Gujarat Co-operative Societies Act, 1961. The Court discusses the provisions of Section 103 of the Act, which deems the order passed by the Registrar or a person authorized by him to be a decree of a Civil Court and be executed in the same manner as a decree of such Court. The Court also considers the application of Section 38 and 39 of the CPC, which provide for the execution of a decree by the Court which passed it or by the Court to which it is sent for execution. The Court concludes that the provisions of Sections 38 and 39 of the CPC are not applicable in the case as the award was passed by an authority under the Act and not by a Civil Court. The Court also discusses the procedure under Order 21 Rule 46A of CPC, which deals with the attachment of debt, and emphasizes the mandatory nature of the provisions. The Court finds that the execution petition was maintainable and directs the Execution Court to treat the order as an attachment under Order 21 Rule 52 of CPC and proceed with the matter. The Court also directs the Execution Court to look into the complaint of the respondents regarding the adjustment of the amount due to them under an award obtained by them.
Fact of the Case:
The appellant-Bank granted a financial facility to a firm and filed a Lavad Suit No. 2265/1984 before the Board of Nominees under The Gujarat Co-operative Societies Act, 1961. The appellant faced obstacles in executing the decree, including dismissal of the execution petition and challenges regarding the application of Sections 38 and 39 of the CPC and Order 21 Rule 46A of CPC. The appellant also sought to recover an amount realized in a Court auction and faced objections from the judgment debtors.
Finding of the Court:
The Court found that the dismissal of the first execution petition did not bar the filing of a fresh execution petition, and the second execution petition was maintainable. The Court concluded that the provisions of Sections 38 and 39 of the CPC were not applicable as the award was passed by an authority under the Act and not by a Civil Court. The Court also found that the execution petition was flawed in its application under Order 21 Rule 46A of CPC and directed the Execution Court to treat the order as an attachment under Order 21 Rule 52 of CPC and proceed with the matter. The Court also directed the Execution Court to look into the complaint of the respondents regarding the adjustment of the amount due to them under an award obtained by them.
Issues: The issues involved in the case included the maintainability of the second execution petition, the application of Sections 38 and 39 of the CPC, and the procedure under Order 21 Rule 46A of CPC. The Court also addressed the complaint of the respondents regarding the adjustment of the amount due to them under an award obtained by them.
Ratio Decidendi: The Court held that the dismissal of the first execution petition did not bar the filing of a fresh execution petition, and the second execution petition was maintainable. The Court concluded that the provisions of Sections 38 and 39 of the CPC were not applicable as the award was passed by an authority under the Act and not by a Civil Court. The Court also found that the execution petition was flawed in its application under Order 21 Rule 46A of CPC and directed the Execution Court to treat the order as an attachment under Order 21 Rule 52 of CPC and proceed with the matter. The Court also directed the Execution Court to look into the complaint of the respondents regarding the adjustment of the amount due to them under an award obtained by them.
Final Decision: The appeals were allowed, and the impugned order was set aside. The Court directed the Execution Court to treat the order as an attachment under Order 21 Rule 52 of CPC and proceed with the matter. The Court also directed the Execution Court to look into the complaint of the respondents regarding the adjustment of the amount due to them under an award obtained by them.
Key Points: - The Court held that the dismissal of the first execution petition for default does not bar a fresh execution petition within the limitation period; second petition maintained (!) (!) . - The award under The Gujarat Co-operative Societies Act, 1961, upon certificate under Section 103, is executable as a decree but not a Civil Court decree; Sections 38 and 39 CPC may not apply; enforcement treated under CPC mechanisms for decrees/arbitral awards (!) (!) (!) (!) . - Proper procedure for attachment/declaration of garnishee and applicability of Order 21 Rule 46A versus Rule 46 and Rule 52; the court should treat the relief as attachment under Order 21 Rule 52 where funds are in court custody; mandatory nature of attachment procedures and garnishee rights (!) (!) (!) (!) .
JUDGMENT :
K.M. JOSEPH, J.
1. 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. 2,61,314.34 ps. 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. 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.
(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.”
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 dismiss
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