Supreme Court Weekly Digest With Nominal And Subject Index [December 12 – 18, 2022]

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) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020 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) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020 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) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020 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) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020 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) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020 Code of Criminal Procedure, 1973; Chapter XVII - Objects of provisions regarding framing of charge - To make the accused aware of the accusations against him on the basis of which the prosecution is seeking to convict him - Accused should be in a position to effectively defend himself. An accused can properly defend himself provided he is clearly informed about the nature of the allegations against him before the actual trial starts. (Para 16-17) Kalicharan v. State of Uttar Pradesh, 2022 LiveLaw (SC) 1027 Code of Criminal Procedure, 1973; Section 190, 200 - The second complaint can be maintainable in exceptional circumstances, depending upon the manner in which the first complaint came to be dismissed. To say it differently, if the first complaint was dismissed without venturing into the merits of the case or on a technical ground and/or by returning a reasoning which can be termed as perverse or absurd in law, and/or when the essential foundation of second complaint is based upon such set of facts which were either not in existence at the time when the first complaint was filed or the complainant could not have possibly lay his hands to such facts at that time, an exception can be made to entertain the second complaint. (Para 14) B.R.K Aathithan v. Sun Group, 2022 LiveLaw (SC) 1022 Code of Criminal Procedure, 1973; Section 204 - The application of judicial mind and arriving at an erroneous conclusion are two distinct things. The Court even after due application of mind may reach to an erroneous conclusion and such an order is always justiciable before a superior Court. Even if the said Order is set aside, it does not mean that the trial court did not apply its mind. (Para 16) B.R.K Aathithan v. Sun Group, 2022 LiveLaw (SC) 1022 Code of Criminal Procedure, 1973; Section 313 - Questioning an accused under Section 313 CrPC is not an empty formality - Accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defence witnesses and leading other evidence. If the accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him. (Para 22) Kalicharan v. State of Uttar Pradesh, 2022 LiveLaw (SC) 1027 Code of Criminal Procedure, 1973; Section 427 - Supreme Court orders that sentences in nine cases against an appellant for theft of electricity shall run concurrently- The Court notes that serious miscarriage will be caused if the appellant is to serve 18 years of sentence for...

Supreme Court Weekly Digest With Nominal And Subject Index [December 12 – 18, 2022]

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