Supreme Court Weekly Round-Up: December 12 To December 18, 2022

JUDGMENTS THIS WEEK Accused's Plea On Applicability Of Section 300 CrPC Has To Be Considered At Discharge Stage U/Section 227 CrPC : Supreme Court Chandi Puliya vs State of West Bengal | 2022 LiveLaw (SC) 1019 | SLP(Criminal) 9897 of 2022 The Supreme Court observed that the accused's plea on applicability of Section 300 CrPC has to be considered at the stage of discharge under Section 227 CrPC. In this case, the accused filed a discharge application under Section 227 r/w Section 300(1) Cr.P.C. before the Trial Court. He contended that he had already been acquitted of the offence of kidnapping and on the basis of the same facts, he is now being sought to be prosecuted for the offence of murder. The same was dismissed on the ground that such an objection can be raised at the stage of framing of charge and not discharge. The Calcutta High Court upheld this order. Execution Court Should Attach The Debt Under Order XXI Rule 46 CPC Before Proceeding Against Garnishee Under Order XXI Rule 46A CPC : Supreme Court Bhagyoday Cooperative Bank Ltd. vs Ravindra Balkrishna Patel (D) | 2022 LiveLaw (SC) 1020 | CA 8531-8532 OF 2022 The Supreme Court observed that an Execution Court should attach the debt under Order XXI Rule 46 CPC before proceeding against garnishee under Order XXI Rule 46A of Code of Civil Procedure can be 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. Orders Giving Visitation Right/Temporary Child Custody Cannot Be Passed In A Proceedings For Restitution Of Conjugal Right : Supreme Court Priyanka vs Santoshkumar | 2022 LiveLaw (SC) 1021 | Transfer Petition(Civil) 964 of 2021 The Supreme court observed that orders giving visitation rights or temporary child custody cannot be passed in a proceedings under Section 9 of the Hindu Marriage Act (Restitution of conjugal rights). In this case, the husband filed a petition under Section 9 of the Hindu Marriage, Act, 1955, seeking Restitution of Conjugal Rights, against the wife before the Family Court at Puducherry. In these proceedings, he filed an interlocutory application which was purportedly to be a petition under Section 26 of the Act, for grant of custody of the child. Both the petitions were entertained exparte and then decreed. Mere Dismissal For Default Of First Execution Petition Will Not Preclude Filing Of A Fresh One Provided It Is Within Time : Supreme Court Bhagyoday Cooperative Bank Ltd. vs Ravindra Balkrishna Patel (D) | 2022 LiveLaw (SC) 1020 | CA 8531-8532 OF 2022 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. Maintainability Of Second Complaint In Exceptional Circumstances Depends Upon The Manner In Which First Complaint Came To Be Dismissed : Supreme Court B R K Aathithan vs Sun Group | 2022 LiveLaw (SC) 1022 | CrA 2080-2083 of 2022 The Supreme Court observed that a second criminal complaint can be maintainable only in exceptional circumstances, depending upon the manner in which the first complaint came to be dismissed. In...

Supreme Court Weekly Round-Up: December 12 To December 18, 2022

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