Mere Dismissal For Default Of First Execution Petition Will Not Preclude Filing Of A Fresh One Provided It Is Within Time : Supreme Court

The Supreme Court observed that mere dismissal of the first execution petition on the ground of default will not preclude decree holder from filing a fresh execution petition provided it is within time. 

In this case, the Bhagyoday Cooperative Bank granted a financial facility to a firm Vimal Traders. Since the amount was not repaid, the proceedings were initated under Gujarat Co-operative Societies Act. The Adjudicatory authority passed an award in favour of the bank. Under Section 103 of the Act, the Award is to be executed in the same manner as a decree of a Civil Court. Therefore the Society filed filed Execution Application before the City Civil Court, Ahmedabad. This application was dismissed for default and later the Bank filed another Execution application. In these proceedings, an application under Order XXI Rule 46A was passed requesting the Court to proceed against Garnishee and this came to be allowed. This order was set aside by the Gujarat High Court inter alia observing that to maintain the second application, the 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.

Before the Apex Court, the appellant contended that mere fact that the earlier execution petition was dismissed would not stand in the way of the processing and considering of the second execution petition. Reliance was placed on the decision in 1969 (1) SCC 718, Shivashankar Prasad Shah and Others Versus Baikunth Nath Singh.

In the said judgment, it was observed thus: "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 judgment-debtor 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."

The court agreed with this contention and observed:

"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."

The main issue regarding Order XXI Rule 46A CPC dealt in this judgment is covered in this report.

Case Details

Bhagyoday Cooperative Bank Ltd. vs Ravindra Balkrishna Patel (D) | 2022 LiveLaw (SC) 1020 | CA 8531-8532 OF 2022 | 16 Nov 2022 | Justices KM Joseph and Hrishikesh Roy

Headnotes

Code of Civil Procedure, 1908 ; Order XXI Rules 46,46A - Execution Court should have first attached the debt under Order 21 Rule 46 before proceeding to pass the order under Order 21 Rule 46A- Order 21 Rule 46A in the case of debt must be understood as a debt spoken of in Order 21 Rule 46 of CPC and the debt must have been attached under Order 21 Rule 46 - Order 21 Rule 46A excepts, debt secured by a mortgage or a charge. Once these conditions are fulfilled, then upon an application being made by the 'attaching creditor' a notice may be issued to the garnishee (Para 27- 28)

Code of Civil Procedure, 1908 ; Order XXI -  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. (Para 21)

Code of Civil Procedure, 1908 ; Sections 38,39- For the effective working of Section 39 of CPC, in other words, there must be a Court which has passed a decree -  When 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. (Para 24)

Code of Civil Procedure, 1908 ; Order XXI Rules 46,46A - The exception is in regard to 'such other property' which though not in the possession of the judgment debtor, is property deposited or is in the custody of any Court - In regard to such property Order 21 Rule 46 and therefore Order 21 Rule 46A will not apply. (Para 25)

Code of Civil Procedure, 1908 ; Order XXI - Execution Proceedings - 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. (Para 1)

Constitution of India, 1950 ; Article 136 - A pure question of law may be permitted to be raised in an appeal generated by the grant of special leave. (Para 22)

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