Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 1240

K. M. JOSEPH, HRISHIKESH ROY
Bhagyoday Cooperative Bank Ltd. – Appellant
Versus
Ravindra Balkrishna Patel Deceased through his LRs. – Respondent

Advocates appeared:
For the Petitioner(s) Mr. Preetesh Kapur, Sr. Adv. Ms. Hemantika Wahi, Adv. Ms. Jesal Wahi, AOR Mr. Kabir Hathi, Adv.
For the Respondent(s): Mr. Aniruddha Deshmukh, Adv. Mr. Nikhil Goel, AOR

Judgement Key Points

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 (!) (!) (!) (!) .

What is the maintainability of a second execution petition under The Gujarat Co-operative Societies Act, 1961 when the first execution petition was dismissed for default or withdrawn?

What is the proper mechanism and scope of attachment and garnishee procedures under Order 21 Rules 46 to 52 CPC when dealing with funds deposited in court custody, and whether Section 38 and 39 CPC apply to awards under the Act?

What is the effect of a certificate under Section 103 of The Gujarat Co-operative Societies Act, 1961 on enforceability as a decree and the appropriate forum/territorial jurisdiction for enforcement and execution?

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 e

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2022 Supreme(SC) 1240

K. M. JOSEPH, HRISHIKESH ROYBhagyoday Cooperative Bank Ltd. – AppellantVersusRavindra Balkrishna Patel Deceased through his LRs. – Respondent

What is the maintainability of a second execution petition under The Gujarat Co-operative Societies Act, 1961 when the first execution petition was dismissed for default or withdrawn?

What is the proper mechanism and scope of attachment and garnishee procedures under Order 21 Rules 46 to 52 CPC when dealing with funds deposited in court custody, and whether Section 38 and 39 CPC apply to awards under the Act?

What is the effect of a certificate under Section 103 of The Gujarat Co-operative Societies Act, 1961 on enforceability as a decree and the appropriate forum/territorial jurisdiction for enforcement and execution?

K. M. JOSEPH, HRISHIKESH ROY
Bhagyoday Cooperative Bank Ltd. – Appellant
Versus
Ravindra Balkrishna Patel Deceased through his LRs. – Respondent