Summary
A cooperative bank won a 1988 award against a firm and its partners under the Gujarat Co-operative Societies Act, certified as a decree under Section 103 in 1995. After withdrawing an earlier execution petition, it filed a fresh one in 2006 in another court. Under Order 21 Rule 46A CPC it sought two partners' shares of surplus auction money held by that court from the sale of their late mother's property. The Gujarat High Court held the petition barred without a Section 39 CPC transfer and the order invalid for want of prior attachment. The Supreme Court held that a fresh petition within limitation is maintainable, and that under Sundaram Finance, Sections 38–39 do not govern such deemed decrees. The Rule 46A route was flawed, but the order was treated as an attachment under Order 21 Rule 52 of money in court custody, up to Rs 12 lakh.
Issues
- Whether a fresh execution petition is maintainable after an earlier one was dismissed or withdrawn, and whether an award deemed a decree under Section 103 of the Gujarat Co-operative Societies Act needs transfer under Section 39 CPC to be executed elsewhere.
- Whether surplus auction money lying in court, payable to the judgment debtors, could be reached by a garnishee order under Order 21 Rule 46A CPC without prior attachment.
Provisions considered
- Section 103, Gujarat Co-operative Societies Act, 1961An order certified by the Registrar is deemed a decree and executable as such; no court passed it within Section 38 CPC, so it may be executed in any court otherwise having jurisdiction without transfer (Sundaram Finance). (¶¶ 4, 22, 24)
- Order XXI, Rules 46, 46A-46C and 52, Code of Civil Procedure, 1908A garnishee order under Rule 46A requires prior attachment of a debt under Rule 46, which does not apply to property in court custody; such property is attached by notice under Rule 52. (¶¶ 25, 27, 28, 32)
Held
- Dismissal of an earlier execution petition for default, or its withdrawal, does not bar a fresh petition filed within limitation; the limitation plea was not pursued before the High Court and was not examined. (¶¶ 21, 22)
- The Board of Nominees is not a court that passed a decree, and the words 'decree as defined in Section 2(2) CPC' in Section 103 only reinforce the deeming; hence no transfer under Section 39 CPC was needed and the High Court erred. (¶ 24)
- Rules 46 to 46I form a mandatory scheme protecting garnishees; neither the deceased mother nor the court Nazir was a debtor of the judgment debtors, so the Rule 46A order was flawed, but since the sons were her heirs and the money lay in the same court, the order is treated as an attachment under Rule 52 up to Rs 12 lakh. (¶¶ 28, 29, 30, 31, 32)
Result
Civil Appeal Nos. 8531-8532 of 2022 allowed; the Gujarat High Court judgment dated 27.03.2018 in Letters Patent Appeal No. 2647 of 2017 set aside, the execution order treated as an attachment under Order XXI Rule 52 CPC to the extent of Rs 12 lakh, and the Execution Court directed to proceed and to account for adjustments due under the award; parties to bear their costs.