BHAGYODAY COOPERATIVE BANK LTD. versus RAVINDRA BALKRISHNA PATEL DECEASED THROUGH HIS LRS & ORS

Citation: [2022] 18 S.C.R. 1 · Decided: 16-11-2022 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Appeal(s) allowed

Cited by 7 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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   [2022] 18 S.C.R. 1
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BHAGYODAY COOPERATIVE BANK LTD.
v.
RAVINDRA BALKRISHNA PATEL DECEASED THROUGH
HIS LRS & ORS.
(Civil Appeal Nos. 8531-8532 of 2022)
NOVEMBER 16, 2022
[K.M JOSEPH AND HRISHIKESH ROY, JJ.]
Gujarat Co-operative Societies Act, 1961 (GCoSA, 1961) –
Ss. 103, 103 (a) - Code of Civil Procedure 1908 – Ss. 38, 39, Or.
21, r.46A, Or. 26, r.46  – Limitation Act S. 5 –  The Appellant-Bank
granted a financial facility to a firm (M/s. Vimal Traders, Partnership
Firm) of three partners (Respondents and one Gautam Vishnuprasad
Tripathi) – Amount was not repaid – Lavad Suit was filed in 1988
by the Appellant before the Board of Nominees u/ GCoSA 1961,
which held to make payment with interest p.a. from the date of suit
till realisation and cost of the suit to the Plaintiff (therein) –  Matter
was adjudicated in the form of an arbitration proceeding –
Certificate contemplated u/s. 103(a) of the Act came to be issued on
17.09.1995 – Appellant filed execution application before Civil
Court – During pendency of said application, Jangam Warrant was
issued against Respondents (therein) for recovery – Appellant filed
an application seeking withdrawal of the Execution Application
with liberty to file the petition before the Court of competent
jurisdiction on the ground that the respondent had shifted the place
of residence – Withdrawal application was allowed on 02.02.2005
– On 19.01.2006, the Appellant-Bank filed an execution petition
before the 4th Additional Senior Civil Judge – Appellant had
obtained a decree against another partnership firm in which the
Respondents were partners alongwith one ‘H’ – Deemed decree
obtained against the said parties in previous Lavad Suit again under
the Act, was put to execution – Mother of respondents, who stood
as guarantor for the loan granted in the transaction which led to
Lavad Suit – Her property was put to sale in the Court auction –
After auction was held there was excess amount which belongs to
mother and lying in deposit – Based on the developments in the
other suit namely the holding of the Court auction in connection
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SUPREME COURT REPORTS
[2022] 18 S.C.R.
with the enforcement of the liability of the mother as guarantor, an
application was  filed on 24.01.2007 by Appellant – The purport of
the application appears to be to obtain satisfaction of the deemed
decree with reference to the amount which was realized in the Court
auction – Respondents  filed objection, which was dismissed and
held that the amount to be deposited and the interest and cost be
come on the share of respondents herein – Respondent challenged
the order – High Court held that (Impugned Order) - a) The
execution application filed by Appellant is not maintainable as after
the first application was dismissed on default the application before
second execution court was not within period of limitation; b)
execution petition filed to get it transferred to second court was
done without an order u/s. 39 of CPC; c) without observing the
mandatory requirement i.e., to affords an opportunity to the person
aggrieved that is the garnishee to raise his objection to the
attachment the Execution Court had allowed the prayer under Order
21 Rule 46A – On appeal, held: 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 – When the Authority passed the award
under the Act, it was a Civil Court – It is not a Court within the
meaning of Section 38 of CPC – For effective working of Section
39 of CPC, there must be a Court which has passed a decree - In
the context of the CPC there is no such Court within the meaning of
Section 38 in these cases instead, there was essentially arbitration
proceedings and what is passed by the said authority is clothed
only with the effect of a decree and it is enforceable as a decree –
Certificate being granted it resulted in a deemed decree – Words
‘decree as defined in clause (2) s. 2 of CPC’ as used in s. 103 of the
Act is to reinforce in the concept of a decree with greater clarity
and by way of abundant caution – The mere presence of these words
by itself cannot support the attempt at distinguishing the principle
which is that in view of the fact that 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 – In case
of debt, share a

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