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

                           [2022] 18 S.C.R. 1                               1


           BHAGYODAY COOPERATIVE BANK LTD.                                  A
                                   v.
  RAVINDRA BALKRISHNA PATEL DECEASED THROUGH
                 HIS LRS & ORS.
                (Civil Appeal Nos. 8531-8532 of 2022)                       B
                        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.
                                                                            C
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         D
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
                                                                            E
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             F
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
                                                                            G
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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                                   1
2            SUPREME COURT REPORTS                      [2022] 18 S.C.R.


A   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
B
    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)
C   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
D
    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
E   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
F
    ‘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
G   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 and other property covered u/ Order 26 Rule 46
    procedures begins with an attachment, but in this case there is no
    attachment of debt in the form of money lying in the deposit, which
    is not a manner to pass order with Order 21 Rule 46 A – In the
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 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                  3
           PATEL DECEASED THR. HIS LRS & ORS.


facts, therefore, the second execution petition is maintainable – The    A
filing of the second execution petition was not illegal for the reason
that there was no order under Section 39 of CPC – The filing of the
application under Order 21 Rule 46A and the order passed as such
by the Execution Court may be flawed.
      Allowing the appeals, the Court                                    B
      HELD: 1. 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][17-F]
      2. The plea of limitation though pressed before the                C
Execution Court was not pursued by the Respondents before
the High Court. No doubt, a pure question of law may be permitted
to be raised in an appeal generated by the grant of special leave
under Section 136 of the Constitution of India. Section 103 of the
Act appears to contemplate that after the adjudication by the            D
Authorities, which would include any appeal carried therefrom,
the order passed, is to be certified by the Registrar or the
Liquidator. This would give birth to what is by way of a deeming
provision a decree of a Civil Court. In this case, an award was
passed in the year 1988 and the certificate was issued in the year
1995. As to when the application was made by the Appellant               E
seeking the certificate and what was the time taken by the
Authority to issue a certificate are all matters shrouded in mystery.
There is a case for the Appellant, no doubt, that the apprehension
of the learned Counsel for the Respondents that if the creditor
sleeps over the matter even for a period beyond time provided            F
for executing a decree and makes an application with great delay
then it would result in a completely inequitable situation may not
rise as the facts speak otherwise. [Para 22][17-G-H; 18-A-D]
       3. The Respondents may not be justified in seeking to
distinguish the judgment of this Court Sundaram Finance Limited.         G
It cannot be in the region of doubt that 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 Code of Civil Procedure. If
there is no Court, which can be said to have passed the award in
this case, then it is inconceivable as to how it could be maintained
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4            SUPREME COURT REPORTS                     [2022] 18 S.C.R.


A   in the same breath that it is indispensable to the maintaining of
    the execution proceedings in another Court that the Court which
    passed the decree must necessarily transfer the proceedings to
    the latter Court. For the effective working of Section 39 of Code
    of Civil Procedure, there must be a Court which has passed a
    decree. The words ‘decree as defined in Clause (2) of Section 2
B
    of Code of Civil Procedure’ as used in Section 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 has been laid down in the decision of Sundaram Finance
C   Limited which is that in view of the fact that Sections 38 and 39 of
    the Code of Civil Procedure are not as such applicable, the decree
    holder may seek to execute the decree in any Court which
    otherwise has jurisdiction. This would mean that the finding by
    the High Court in this regard is flawed and is liable to be
    overturned. [Para 24][19-G-H; 20-A-E]
D
           4. In this case, there is no attachment of the debt in the
    form of the money lying in deposit. The order which is passed is
    expressly made Under Order 21 Rule 46A. Certainly, this is not
    the manner in which an order could have been passed within the
    meaning of Order 21 Rule 46A. There is a definite scheme as
E   already noticed which is clear from the perusal of Order 21 Rule
    46 and by the subsequent additions to the law by the amendment
    of the year 1976 which is contained in Order 21 Rule 46A to
    Order 21 Rule 46I. It would unerringly point to the provisions
    being mandatory. Therefore, the High Court appears to be right
F   in its finding that the Execution Court should have first attached
    the debt under Order 21 Rule 46 before proceeding to pass the
    order under Order 21 Rule 46A of Code of Civil Procedure.
    [Para 28][24-G-H; 25-A]
          5. The filing of the second execution petition was not illegal
G   for the reason that there was no order under Section 39 of Code
    of Civil Procedure. The filing of the application Under Order 21
    Rule 46A and the order passed as such by the Execution Court
    may be flawed. In the facts of this case, the more appropriate


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 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                5
           PATEL DECEASED THR. HIS LRS & ORS.


order would have been one under Order 21 Rule 52 of Code of            A
Civil Procedure. The amount is lying in deposit with the same
Court in which the Appellant has moved the second application
for execution. It is directed that the order passed by the Execution
Court must be treated as an order by which the attachment has
been made Under Order 21 Rule 52 of Code of Civil Procedure.
                                                                       B
By order dated 08.08.2022, this Court had permitted the
Respondents to withdraw the amount lying in deposit in excess
of Rs. 12 lakhs. It would thus be open to the Appellant to proceed
against the said amount, to the extent of Rs. 12 lakhs. The order
will be treated as an order of attachment. The Execution Court,
will therefore proceed with the matter in accordance with law.         C
However, the Respondents-Patel brothers had an opportunity to
raise objections before the Execution Court and the right which
is given Under Order 21 Rule 46C is for the benefit of the
garnishee. It is nobody’s case that the Respondents-Patel
brothers are the garnishees. [Para 32][26-G-H; 27-A-D]
                                                                       D
        6. The Execution Court will however look into the
complaint of the Respondents that the Appellant has not properly
accounted with reference to the directions given by the Arbitrator
regarding the adjustment to be done of the amount which would
be due to the Respondents under an award obtained by them. It
is left open to the Execution Court to undertake the said exercise     E
and it is for the Execution Court to finally decide the exact amount
which is to be made available to the Appellant. The impugned
order is set aside. Appeals allowed. [Para 33][27-E-F]
      Shivashankar Prasad Shah and Others Versus Baikunth
      Nath Singh and Others 1969 (1) SCC 718: [1969] 3                 F
      SCR 908; Sundaram Finance Limited versus Abdul
      Samad and Another (2018) 3 SCC 622: [2018] 10
      SCR 451; Nuthalapati Kotaiah vs. Executive Officer
      TTD Office at Guntu (1985) 3 AP LJ 103; The Madurai
      City Municipal Corporation, represented by its                   G
      Commissioner, Madurai vs. N. Baskara Pandian &
      another 1998 SCC Online Mad 75; Executive Engineer,



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6            SUPREME COURT REPORTS                            [2022] 18 S.C.R.


A         T. C. Division, K.S.E. Boards, Palghat versus J. H.
          Sharma and another AIR 1988 Ker. 285 – referred
          to.
                             Case Law Reference
    [1969] 3 SCR 908                   referred to                Para 14
B
    [2018] 10 SCR 451                  referred to                Para 16
          CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8531-
    8532 of 2022.
          From the Judgment and Order dated 27.03.2018 of the High Court
C   of Gujarat at Ahmedabad in Letters Patent Appeal No.2647 of 2017 in
    Special Civil Application No.9619 of 2013.
          Preetesh Kapur, Sr. Adv., Ms. Hemantika Wahi, Ms. Jesal Wahi,
    Kabir Hathi, Advs. for the Appellant.
          Aniruddha Deshmukh, Nikhil Goel, Advs. for the Respondents.
D
          The Judgment of the Court was delivered by
          K.M. JOSEPH, J.
          Leave granted.

E          2. 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. With the facts as unfolded in the course of
    the judgment, we are reinforced in our belief that there is substance in
    this complaint.

F          3. The appellant-Bank granted a financial facility to a firm (M/s.
    Vimal Traders, Partnership Firm). There were three partners, namely,
    Ravindra Balkrushna Patel and Nikhil Balkrushna Patel who are
    brothers and the third person was Shri Gautam Vishnuprasad Tripathi.
    Since the amount was not repaid, a Lavad Suit No.2265/1984 came to
    be filed by the appellant-bank before the Board of Nominees under The
G   Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as
    ‘the Act’). The adjudicatory body passed an order on 23.09.1988. The
    operative portion of the order reads as follows: -
                    “The defendants to make payment of Rs.2,61,314.34ps.
                   with 20.5% interest p.a. from the date of suit till realisation
H                  and cost of the suit to the plaintiff latest by 31.03.1989.
 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                       7
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


               The garnish order passed below Exh.6 is made absolute          A
               and the plaintiff is at liberty to execute the award against
               the G.S.I.C. for the said amount of Rs.1,50,000/- taking
               due process of law after 31.03.1989. Lavad fee of
               Rs.510/- deposited by the plaintiff to be credited to the
               Government as fees.
                                                                              B
                Award accordingly
                Given and pronounced in open Court on 23.09.1988.”
      4. We may notice at this juncture itself Section 103 of the Act. It
reads as follows: -
                                                                              C
                 “103. Money how recovered.- Every order passed by
                 the Registrar or a person authorised by him under
                 Section 93, or by the Registrar, his nominee or board of
                 nominees under Section 100 or 101, every order passed
                 in appeal under Section 102, every order passed by a
                 Liquidator under Section 110, every order passed by          D
                 the State Government in appeal against orders passed
                 under Section 110 and every order passed in revision
                 under Section 155, shall if not carried out,-
                          (a) on a certificate signed by the Registrar or
                          a Liquidator, be deemed to be a decree of a         E
                          Civil Court, as defined in clause (2) of Section
                          2 of the Code of Civil Procedure, 1908 and
                          shall, be executed in the same manner as a
                          decree of such Court, or
                          (b) be executed according to the provisions of      F
                          the Land Revenue Code and the rules
                          thereunder for the time being in force for the
                          recovery of arrears of land revenue:
                 Provided that, any application for the recovery in such
           manner of any such sum shall be made to the Collector, and         G
           shall be accompanied by a certificate signed by the Registrar,
           or by any Assistant Registrar to whom the said power has
           been delegated by the Registrar. Such application shall be
           made within twelve years from the date fixed in the order
           and if no such date is fixed, from the date of the order.”
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8            SUPREME COURT REPORTS                          [2022] 18 S.C.R.


A          5. On the application apparently made by the appellant-Bank, the
    certificate contemplated under Section 103 (a) of the Act came to be
    issued on 17.09.1995. In view of the provisions of Section 103 of the
    Act, since the order passed under Section 103 of the Act in this case is
    to be executed in the same manner as a decree of a Civil Court as
    defined in clause (2) of Section 2 of the Code of Civil Procedure, 1908
B
    (For short ‘CPC’), the appellant initially filed Execution Application
    No.777/1995 before the City Civil Court, Ahmedabad. It would appear
    that the notice was not served in the Execution Application No.777/1995
    and the appellant according to it tried to serve the notice but it failed.
    Thereupon, the Execution Court passed the following order on
C   22.10.1997, which reads as under:-
                  “When matter called out, neither darkhastdar nor his L.A.
                  is present. From the record, it appears that the darkhastdar
                  has not taken any effective steps since long. However, in
                  the interest of justice, darkhastdar is granted, time till
D                 27.11.1997. If no effective step is taken till than the
                  darkhastdar- petition will stand automatically dismissed on
                  27.11.1997.”
           6. Still further, the appellant on 27.11.1997 gave a new address
    and filed an application. It is the further case of the appellant that the
E   Court was not working and there was a strike and the case stood posted
    to 10.12.1997. During the pendency of the Execution Application No.777
    of 1995, a Jangam Warrant was issued against the respondents for
    recovery of Rs.8,74,033.49/- by order dated 15.07.1998. On 02.02.2005,
    the appellant-Bank filed an application seeking withdrawal of the
    Execution Application with liberty to file the petition before the Court of
F   competent jurisdiction. This was occasioned according to the appellant-
    Bank by shifting of the residence of the respondents. According to the
    appellant-Bank, the said application was allowed and the Execution
    Application was permitted to be withdrawn by order dated 02.02.2005.
    On 19.01.2006, the appellant filed an execution petition before the 4th
G   Additional Senior Civil Judge (Ahmedabad Rural).
           7. At this juncture, we must notice another aspect. It would appear
    that the appellant-Bank had obtained a decree against M/S. Virat Paper
    Processors (a partnership firm) in which again Ravindra Balkrushan
    Patel and Nikhil Balkrushna Patel (hereinafter for brevity ‘Patel
H   brothers’) were partners along with Hemant Balkrushna Patel (not a
 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                        9
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


party herein). It must be noticed that all the three were brothers though      A
the firm was a different firm. The deemed decree obtained against the
said parties in Lavad Suit No.576/1988 again under the Act, was put to
execution. It is here we must note another person whose role will become
clear i.e., Savitaben Balkrushna Patel (Deceased)-the mother of the
Patel brothers, who stood as guarantor for the loan granted in the
                                                                               B
transaction which led to Lavad Suit No.576/1998. Her property was
finally put to sale in the Court auction. A sum of Rs.39,25,000/- was
fetched and it was lying in deposit. The mother of the Patel brothers
expired on 18.06.2005.
       8. Resuming the narrative with reference to the developments in
the suit with which we are concerned, after filing of the execution petition   C
as it were by the appellant in the new Execution Court apparently based
on the developments in the other suit namely the holding of the Court
auction in connection with the enforcement of the liability of the mother
as guarantor, an application came to be filed on 24.01.2007. The purport
of the application appears to be to obtain satisfaction of the deemed          D
decree with reference to the amount which was realized in the Court
auction. We may only notice the prayer as we find from Annexure-P7
of the SLP paper book, which is as follows: -
                       “A. In connection with the Special Darkhast no.
                       80/99, the property of the opponents was sold by        E
                       initiating legal procedure and amount thereof to
                       the tune of Rs. 39,25,000/- rupees thirty Nine lacs
                       twenty five thousand only is deposited before the
                       Court in Special Darkhast no. 80/99 and after
                       deducting the outstanding amount in special
                       Darkhast no. 80/99 with interest and cost,              F
                       remaining amount is likely to be credited and that
                       amount is to be given to the opponents no. 2 and 3
                       thus, your honour may be pleased to pass order of
                       garnishi and direct the registrar/Nazir of the Court
                       of learned Civil Judge (S.D.) Saheb to deposited        G
                       the remaining credited amount in the said
                       execution.
                        B. Your honour may be pleased to pass such other
                        and further relief as may be deemed fit.
                                                                               H
10             SUPREME COURT REPORTS                           [2022] 18 S.C.R.


A                            C. Your honour may be pleased to pass order to
                             send one copy of the order of this Garnishi
                             application to keep it in Special Darkhast no. 80/
                             99 pending before the Court of Shri BB Pathak
                             sahib, Civil Judge S.D. Ahmedabad Rural.”
B            9. The Patel brothers who are judgment debtors in the instant
     case filed their objections. After considering their objections, the Execution
     Court passed the following order.
                             “Objection application Ex. 28 filed by the
                             opponents no. 2 and 3 is hereby dismissed.
C                               Under the provisions of order 21 Rule 46A of
                             the CPC, the Registrar and Nazir of the Court of
                             Principal Senior Civil Judge Saheb, Ahmedabad
                             (rural) is hereby ordered to deposit the actual
                             remaining amount in this Darkhast after making
D                            payment of the Darkhast, interest and cost come
                             on the share of opponent Ravindra Balkrishna
                             Patel and Nikhil Balkrishna Patel out of the
                             credited amount in Special Darkhast No.80-99.
                             This order has been declared today on this
E                            10.04.2013 in the open Court.”
            It is this order which came to be challenged before the High Court
     by the Patel brothers. The High Court by the impugned order has set
     aside the order passed by the Execution Court. It is being aggrieved
     thereby that the appellant-Bank is before us.
F          10. We heard Mr. Preetesh Kapur, learned senior counsel for the
     appellant and also Mr. Aniruddha Deshmukh, learned counsel appearing
     on behalf of the Patel brothers, including the partnership firm.
            THE FINDINGS IN THE IMPUGNED ORDER
            11. The High Court finds that the earlier execution petition filed in
G    the first Execution Court, namely, Execution Application No.777/1995,
     having been dismissed, the application which is filed subsequently in the
     year 2006 before the Second Execution Court, if we may describe it as
     such was not maintainable. It is found that the first application having
     been dismissed for default, the proper course would have been to approach
H    the said Court within the period of limitation. It is found that the said
 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                       11
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


order dismissing the execution application should have been set aside         A
within a period of 30 days since Section 5 of the The Limitation Act,
1963 is not available in execution proceedings, the subsequent execution
petition is barred.
       12. Next, it is found that in view of Section 38 of CPC a decree
could be executed either by the Court which passed it or the Court to         B
which the decree was transferred. Section 39 of the CPC provides for
the exclusive mechanism by which the decree could be ordered to be
transferred. In the facts of this case, it was found there was no approach
made by the appellant-Bank to the Court in which the execution petition
was originally filed to get it transferred to the second Court in which
without an order under Section 39, the appellant-Bank filed the second        C
application in the year 2006. Therefore, the very petition filed before the
Execution Court on the second occasion was not maintainable.
       13. Further, the Court elaborated on the flaw involved in the
application maintained under Order 21 Rule 46A of CPC and, more
importantly, the actual order that was passed thereunder. The reasoning       D
of the High Court is as follows: - Before an order is passed under Order
21 Rule 46A of the CPC, there must be an attachment of the debt.
There was no attachment of the debt within the meaning of Order 21
Rule 46 of CPC. It is found that Order 21 Rule 46 of CPC insisting on an
order of attachment as is clear from a perusal of Order 21 Rule 46A of        E
CPC serves a salutary purpose. It affords an opportunity to the person
aggrieved that is the garnishee to raise his objection to the attachment.
Valuable rights are vouchsafed to the garnishee and the right is to be
enforced through the mechanism of Order 21 Rule 46C. Order 21 Rule
58 provides for objection to attachment. A person aggrieved by an order
under Order 21 Rule 58 of CPC has further rights in the form of the           F
appeals as provided in law. In this case, it was found that without
observing the mandatory requirement of attachment it is that the Execution
Court had allowed the prayer under Order 21 Rule 46A. It must be
noticed that though the argument relating to the execution petition being
barred by limitation was pursued vigorously before the Execution Court,       G
it was not pressed before the High Court by the respondents.
      CONTENTIONS OF THE PARTIES
     14. Mr. Preetesh Kapur, learned senior counsel for the appellant
would with reference to the facts as we have noticed make the following
submissions. He would point out that the mere fact that the earlier           H
12             SUPREME COURT REPORTS                          [2022] 18 S.C.R.


A    execution petition was dismissed would not stand in the way of the
     processing and considering of the second execution petition. The execution
     petition was dismissed only if at all on account of default. In fact, it was
     withdrawn with liberty. But even if it is dismissed on default, in view of
     the law laid down by judgment of this Court in 1969 (1) SCC 718,
     Shivashankar Prasad Shah and Others Versus Baikunth Nath Singh
B
     and Others, the second petition was maintainable. It was held as follows
     in the said decision: -
                          “6. 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
C                         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-see Lakshmibai Anant
D                         Kondkar v. Rayji Bhikaji Kondkar, (XXXI, BLR
                          400). Even the dismissal for default of objections
                          raised under Section 47, Civil Procedure Code does
                          not operate as res judicata when the same objections
                          are raised again in the course of the execution-see
                          Bahir Das Pal and Another v. Girish Chandra
E                         Pal, AIR 1923 Cal 287; Bhagwati Prasad Sah v.
                          Radha Kishun Sah and Others, AIR 1950 Pat
                          354; Jethmal and Others v. Mst. Sakina, AIR 1961
                          Raj 59; Bishwannath Kundu v. Smt. Subala Dassi,
                          AIR 1962 Cal 272. We do not think that the decision
F                         in Ramnarain v. Basudeo, ILR XXV Pat 595 on
                          which the learned counsel for the appellant placed
                          great deal of reliance is correctly decided. Hence
                          we agree with the High Court that the plea of res
                          judicata advanced by the appellant is unsustainable.”
G           15. The dismissal of the earlier execution petition on the ground
     of default will not bar the filing of a fresh execution as long as the second
     petition is filed within the period of limitation. In this case, limitation
     would begin to run only on obtaining the certificate contemplated under
     Section 103 of the Act. The certificate was obtained in the year 1995.
     Therefore, the second execution petition filed in the year 2006 was well
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 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                          13
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


within the period of 12 years and therefore the execution petition is not        A
barred. As far as the findings of the High Court that Sections 38 and 39
of the CPC governed the facts of the case, it is contended that the Court
has erred in not bearing in mind the following a vital feature present in
this case. This is not a case where a decree has been passed by a Civil
Court. What has happened is in terms of the Act on a claim by the
                                                                                 B
appellant-Bank which is a creditor the matter was adjudicated in the
form of an arbitration proceeding. At the end of the adjudication, the
plaintiff being successful, an award was passed. After the award is
passed, a certificate has to be applied for. The certificate is granted
under Section 103 of the Act. The certificate granted under Section 103
of the Act only results in the order passed becoming executable as a             C
decree. He further points out that even after the certificate is passed it
is not as if the order was a decree as such. All that the law provides is
that it is enforceable as a decree. He would submit that similar provisions
are contained in the Arbitration and Conciliation Act, 1996.
        16. He drew our attention in this regard to the judgment of this         D
Court reported in Sundaram Finance Limited versus Abdul Samad
and Another, (2018) 3 SCC 622. Therein this Court was considering
the question which was similar to the question which arises in the facts
of this case, namely, whether the filing of the execution petition is governed
by the regime provided under Sections 38 and 39 of the CPC. We notice
the following, inter alia, discussion: -                                         E

                “14. We would now like to refer to the provisions of the
                said Act, more specifically Section 36(1), which deals
                with the enforcement of the award:
                              “36. Enforcement. — (1) Where the time             F
                         for making an application to set aside the arbitral
                         award under Section 34 has expired, then, subject
                         to the provisions of sub-section (2), such award
                         shall be enforced in accordance with the
                         provisions of the Code of Civil Procedure, 1908
                         (5 to 1908), in the same manner as if it were a         G
                         decree of the court.”
                The aforesaid provision would show that an award is to
                be enforced in accordance with the provisions of the said
                Code in the same manner as if it were a decree. It is,
                                                                                 H
14             SUPREME COURT REPORTS                          [2022] 18 S.C.R.


A                    thus, the enforcement mechanism, which is akin to the
                     enforcement of a decree but the award itself is not a
                     decree of the civil court as no decree whatsoever is
                     passed by the civil court. It is the Arbitral Tribunal, which
                     renders an award and the tribunal does not have the
                     power of execution of a decree. For the purposes of
B
                     execution of a decree the award is to be enforced in the
                     same manner as if it was a decree under the said Code.
                     20. We are, thus, unhesitatingly of the view that the
                     enforcement of an award through its execution can be
                     filed anywhere in the country where such decree can be
C                    executed and there is no requirement for obtaining a
                     transfer of the decree from the court, which would have
                     jurisdiction over the arbitral proceedings.”
            17. He would therefore submit that once second application was
     not barred by limitation, a fresh execution petition could be filed in the
D    Court which would have jurisdiction. The jurisdiction of the second Court
     would have to be determined with reference to the element of the
     residence of the judgment debtors within the jurisdiction of that Court or
     the existence of property as the case may be within the limits of the
     Courts jurisdiction. As far as the finding that Order 21 Rule 46 of CPC
E    was observed in its breach before the Court passed the Order 21 Rule
     46A of CPC, he would submit that the garnishee in the case is not the
     mother of the Patel brothers. In fact, the mother as noticed had passed
     away in the year 2005 and the application itself was filed only in the year
     2007. The case of the appellant is that after the auction was held in
     execution of the decree in the other suit filed by the appellant after
F    satisfying the decree debt in the said case, there was an excess sum. It
     belonged to the mother and it was lying in deposit and as the mother
     passed away, therefore, it became payable by the Court’s Nazir to the
     judgment debtors in the said case two of whom are the judgment debtors
     being the Patel brothers involved in this case also. Therefore, the argument
G    is that it is the Court Nazir who is the garnishee as he was under an
     obligation or debt to make payment of the said amount to the judgment
     debtors which included Patel brothers involved in this case. He would
     further submit that with reference to the wide powers available to the
     Execution Court under Section 51 of CPC that at any rate it would be

H
 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                        15
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


highly unjust to deny the decree holder the fruits of its decree and to        A
proscribe the Court from getting at assets of the judgment debtors which
were lying in a deposit in the same Court. In other words, the proceeds
of the Court auction after satisfying the decree debt of the appellant in
the other case and payable to the judgment debtors after death of the
guarantor (mother) was lying in deposit of the second Execution Court.
                                                                               B
On the strength of the powers available under Section 51 as also inherent
power under Section 151 of CPC, the Court must be ceded the power to
make available the said amount for appropriation by the decree holder.
       18. Per-contra, learned counsel for the respondents, Mr.
Aniruddha Deshmukh stoutly opposes the contentions. He would point
that as far as the interpretation placed under Sections 38 and 39 of CPC       C
by the High Court is concerned it is unexceptionable. When confronted
with the judgment of this Court, in Sundaram Finance Limited (supra)
relied upon by the learned counsel for the appellant, he would make an
attempt at distinguishing the said judgment. This attempt is bolstered
with reference to the words ‘decree as defined in clause (2) of Section        D
2 of CPC’ as found in Section 103 of the Act. He would submit that this
distinguishable text of the Act with which this Court is concerned may
render the principle laid down by the judgment of this Court not applicable.
He would further point out that the High Court was entirely right in its
interpretation of Order 21 Rule 46 and Order 21 Rule 46A. He supported
his contention in this regard to three judgments of the High Courts which      E
are as follows: - Nuthalapati Kotaiah vs. Executive Officer TTD Office
at Guntur, (1985) 3 AP LJ 103, The Madurai City Municipal
Corporation, represented by its Commissioner, Madurai vs. N.
Baskara Pandian & another, 1998 SCC Online Mad 75 and
Executive Engineer, T. C. Division, K.S.E. Boards, Palghat versus              F
J. H. Sharma and another, AIR 1988 Ker. 285. He would submit that
Order 21 Rule 46 read with Order 21 Rule 46A of CPC and the provisions
which succeed these provisions enact a scheme which is intended to
safeguard the interest of the garnishee. Any deviation from the mandatory
regime will reach grave injustice to the garnishee as found by the High
Court and also echoed in the judgments relied upon by him. He would            G
further point out that Order 21 Rule 52 of CPC provides for the procedure
to be followed in a case like the present. Order 21 Rule 52 of CPC,
reads as follows: -

                                                                               H
16             SUPREME COURT REPORTS                          [2022] 18 S.C.R.


A          ORDER 21 RULE 52:-
            52. Attachment of property in custody of Court or public officer.—
     Where the property to be attached is in the custody of any Court or
     public officer, the attachment shall be made by a notice to such Court or
     officer, requesting that such property, and any interest or dividend
B    becoming payable thereon, may be held subject to the further orders of
     the Court from which the notice is issued:
            Provided that, where such property is in the custody of a Court,
     any question of title or priority arising between the decree-holder and
     any other person, not being the judgment-debtor, claiming to be interested
C    in such property by virtue of any assignment, attachment or otherwise,
     shall be determined by such Court.
            19. He would submit that since the appellant is not pursuing a
     case based on the mother (deceased) being a garnishee and if the further
     case based on the Court Officer being a garnishee falls to the ground,
D    the only express provision which must be understood as giving effect to
     the residuary clause found in both Section 51 of CPC and Order 21 Rule
     11 must be followed. Section 51 of the CPC, inter alia, provides as
     follows: -
             51. Powers of Court to enforce execution.—Subject to such
E    conditions and limitations as may be prescribed, the Court may, on the
     application of the decree-holder, order execution of the decree—
                         (a) by delivery of any property specifically decreed;
                         (b) by attachment and sale or by the sale without
                             attachment of any property;
F
                         (c)by arrest and detention in prison [for such period
                             not exceeding the period specified in Section 58,
                             where arrest and detention is permissible under
                             that section];
                         (d) by appointing a receiver; or
G
                         (e) in such other manner as the nature of the relief
                              granted may require:
           20. In similar vein, we find that when an execution petition is filed,
     the applicant is obliged to specify the nature of the relief which he seeks.
H    Not unnaturally there is replication of the words ‘such other manner as
 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                          17
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


may be needed’. He would still further point out that Order 21 Rule 46A          A
of CPC was not available to the appellant for another formidable reason.
Order 21 Rule 46 expressly is inapplicable in regard to movable property
not in the possession of the judgment debtor where the property is
deposited in or in the custody of the Court. Therefore, it is contended
that if money fetched in a Court auction can be described as property
                                                                                 B
and it is deposited in the Court then in view of the express provision of
Order 21 Rule 46, it is not applicable. The scheme of Order 21 Rule 46
followed by Order 21 Rule 46A may not be available and this may have
to be dealt with under Order 21 Rule 52. He would finally conclude by
contending that on the facts there is another obstacle for the appellant to
realise the fruits of the decree. It is submitted that a perusal of the          C
award by the authority under the Act would reveal that the judgment
debtors have obtained an award against a third party. It was ordered in
the award that the appellant would be entitled to execute the said award
in realizing the amount which was awarded in favour of the appellant in
this case. This has not been accounted for. It is pointed out that the said
                                                                                 D
process would necessarily have to be undertaken even if this Court is
inclined to grant any relief to the appellant.
       FINDINGS
       21. The first question we have to consider is whether the dismissal
of the execution petition filed by the appellant apparently on the ground        E
of default or withdrawal of the first execution petition will result in a bar
for the filing or the prosecuting of the Second execution petition. In this
regard, in fact, 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        F
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.
        22. This brings us to the aspect of limitation. The plea of limitation
though pressed before the Execution Court was not pursued by the                 G
respondents before the High Court. No doubt, a pure question of law
may be permitted to be raised in an appeal generated by the grant of
special leave under Section 136 of the Constitution of India. We may
only observe that what Section 103 of the Act contemplates is grant of
certificate signed by the Registrar or the Liquidator. This is to be preceded    H
18             SUPREME COURT REPORTS                          [2022] 18 S.C.R.


A    by the requirement of words ‘shall if not carried out’. In other words,
     what Section 103 of the Act appears to contemplate is that after the
     adjudication by the Authorities which would include any appeal carried
     therefrom, the order passed, inter alia, is to be certified by the Registrar
     or the Liquidator. This would give birth to what is by way of a deeming
     provision a decree of a Civil Court. In this case, we may only notice that
B
     an award was passed in the year 1988 and the certificate was issued in
     the year 1995. As to when the application was made by the appellant
     seeking the certificate and what was the time taken by the Authority to
     issue a certificate are all matters shrouded in mystery. There is a case
     for the appellant, no doubt, that the apprehension of the learned counsel
C    for the respondents that if the creditor sleeps over the matter even for a
     period beyond time provided for executing a decree and makes an
     application with great delay then it would result in a completely inequitable
     situation may not rise as the facts speak otherwise. We do not intend to
     however in this case go to this question in greater detail, particularly in
     view of the fact that it was not pursued.
D
           23. The next question which arises is the effect of the interplay of
     Sections 38 and 39 of CPC. They are as follows: -
           38. Court by which decree may be executed.—A decree may be
           executed either by the Court which passed it, or by the Court to
E          which it is sent for execution.
           39. Transfer of decree.—(1) The Court which passed a decree
           may, on the application of the decree-holder, send it for execution
           to another Court [of competent jurisdiction], —
                         (a) if the person against whom the decree is passed
F                            actually and voluntarily resides or carries on
                             business, or personally works for gain, within the
                             local limits of the jurisdiction of such other Court,
                             or
                         (b) if such person has no property within the local
G                            limits of the jurisdiction of the Court which passed
                             the decree sufficient to satisfy such decree and
                             has property within the local limits of the
                             jurisdiction of such other Court, or

H
 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                        19
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


                   (c) if the decree directs the sale or delivery of           A
                       immovable property situate outside the local limits
                       of the jurisdiction of the Court which passed it, or
                   (d) if the Court which passed the decree considers
                       for any other reason, which it shall record in
                       writing, that the decree should be executed by          B
                       such other Court.
          (2) The Court which passed a decree may of its own motion
      send it for execution to any subordinate court of competent
      jurisdiction.
          [(3) For the purposes of this section, a Court shall be deemed       C
      to be a court of competent jurisdiction if, at the time of making the
      application for the transfer of decree to it, such Court would have
      jurisdiction to try the suit in which such decree was passed.]
         [(4) Nothing in this section shall be deemed to authorise the
      Court which passed a decree to execute such decree against any           D
      person or property outside the local limits of its jurisdiction.]
       It is clear that under the scheme of the CPC, if a decree is passed
by a Civil Court, then either the Court which passed the decree can
execute it or the Court to which the decree is transferred can execute
the decree. Section 39 of the CPC speaks of the powers of the transferor       E
court. It also provides for the decree holder applying to the Court which
passed the decree. The question, however, is whether this regime is
applicable in the facts of this case. We have noticed the judgment of this
Court rendered no doubt in the context of the Arbitration and
Conciliation Act, 1996. The only point which is raised before us to            F
distinguish the said judgment by the learned counsel for the respondents
is that in view of the use of words ‘decree as defined in clause (2) of
Section 2 of CPC’, in Section 103 of the Act, the principle may not be
available.
       24. We are of the view that the respondents may not be justified
                                                                               G
in seeking to distinguish the judgment of this Court Sundaram Finance
Limited (supra). It cannot be in the region of doubt that 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. If there is no Court, which
can be said to have passed the award in this case, then it is inconceivable
                                                                               H
20             SUPREME COURT REPORTS                          [2022] 18 S.C.R.


A    as to how it could be maintained in the same breath that it is indispensable
     to the maintaining of the execution proceedings in another Court that the
     Court which passed the decree must necessarily transfer the proceedings
     to the latter Court. For the effective working of Section 39 of CPC, in
     other words, there must be a Court which has passed a decree. In the
     context of the CPC, we are of the view that there is no such Court
B
     within the meaning of Section 38 in these cases. Instead, we have what
     is 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. No doubt on the certificate being granted it resulted in a
     deemed decree. In such circumstances, we are of the view that there is
C    no merit in the contention of the respondents. The attempt to distinguish
     the judgment based on the presence of the words ‘decree as defined in
     clause (2) of Section 2 of CPC’ is equally misplaced. This is for the
     reason that we would think that the words ‘decree as defined in clause
     (2) of Section 2 of CPC’ as used in Section 103 of the Act is to reinforce
     in the concept of a decree with greater clarity and by way of abundant
D
     caution. The mere presence of these words by itself cannot support the
     attempt at distinguishing the principle which has been laid down in the
     decision of Sundaram Finance Limited (supra) 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
E    otherwise has jurisdiction. This would mean that the finding by the High
     Court in this regard is flawed and is liable to be overturned.
            25. This brings us to the last of the substantive contentions which
     have been debated before this Court. Undoubtedly, Order 21 Rule 46A
     of CPC is part of the scheme of the provisions relating to executions and
F    it must be understood with reference to the reliefs which can be claimed
     by the decree holder as provided in both Section 51 and Order 21 Rule
     11 of CPC. We have already noticed Section 51 and we have also noticed
     Order 21 Rule 11. The lawgiver has elaborated the manner in which
     each of these sub heads under which a decree holder may execute a
     decree. For instance, the aspect of attachment of various kinds of
G    properties are found to be separately dealt with in Order 21 of CPC, and
     the procedure to be followed has been detailed thereunder. Order 21
     Rule 46 apparently deals with attachment of debt, share and other property
     but an important distinguishing feature is that the debt, share and other
     property must not be in the possession of the judgment debtor to attract
H
 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                       21
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


Order 21 Rule 46. The exception is in regard to ‘such other property’         A
which though not in the possession of the judgment debtor, is property
deposited or is in the custody of any Court. In other words, in regard to
such property Order 21 Rule 46 and therefore Order 21 Rule 46A will
not apply. Order 21 Rule 46A of CPC was in fact, inserted by Act 104 of
1976 with effect from 01.02.1997. So are the rest of the provisions which
                                                                              B
include Order 21 Rule 46B to Order 21 Rule 46I of CPC. The scheme
would appear to be as follows. In the case of debt, share and other
property which is covered by Order 21 Rule 46 the procedure begins
with an attachment. It is to be made by a written order. The order
prohibits the creditor recovering the debt and the debtor from making
payment until further orders of the Court. The copy of the order so           C
prohibiting the parties is to be affixed on a conspicuous part of the Court
house and another copy is to be sent to the debtor. The debtor of the
judgment debtor is prohibited from making the payment. He may pay
the amount of debt into the Court and such payment will be a discharge
for him as if he has made the payment to his immediate creditor.
                                                                              D
       26. Order 21 Rule 46A of CPC, then deals with the notice to be
given to the garnishee. A garnishee is obviously a person who owes a
debt to the judgment debtor. It can be illustrated by an example i.e. ‘A’
owes a debt to ‘B’, ‘B’ in turns owes a debt to ‘C’, ‘C’ can obtain an
order of garnishee against ‘A’. ‘A’ would then be prohibited from making
the payment to ‘B’. ‘B’ would stand prohibited from receiving the debt        E
from ‘A’.
       27. It is clear from Order 21 Rule 46A that in the case of debt
which must be understood as a debt spoken of in Order 21 Rule 46 of
CPC subject to what we will say immediately hereinafter, it is insisted
upon by the lawgiver that the debt must have been attached under Order        F
21 Rule 46. There is a further qualification as regards debt. 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 who in the
example we have given, is ‘A’ calling upon him either to pay the debt or      G
so much of it as would be sufficient to satisfy the decree and the cost of
execution or show cause as to why he should not do so. Under Order 21
Rule 46B, if the garnishee does not pay the amount forthwith or he does
not appear in the case of a show cause, the Court is empowered to
order the garnishee to comply with the terms of the notice. The Court is
                                                                              H
22            SUPREME COURT REPORTS                            [2022] 18 S.C.R.


A    empowered to proceed as if there is a decree against the garnishee.
     Order 21 Rule 46C reads as follows: -
             46-C. Trial of disputed questions.—Where the garnishee disputes
           liability, the Court may order that any issue or question necessary
           for the determination of liability shall be tried as if it were an issue
B          in a suit, and upon the determination of such issue shall make
           such order or orders as it deems fit:
                         Provided that if the debt in respect of which the
                     application under Rule 46-A is made is in respect of a
                     sum of money beyond the pecuniary jurisdiction of the
C                    Court, the Court shall send the execution case to the
                     Court of the District Judge to which the said Court is
                     subordinate, and thereupon the Court of the District
                     Judge or any other competent Court to which it may be
                     transferred by the District Judge shall deal with it in the
                     same manner as if the case had been originally instituted
D                    in that Court.
           Therefore, it is clear that the lawgiver has contemplated to confer
     invaluable rights on the garnishee in the form of empowering him to
     challenge the attachment which is necessarily involved in the order of
     garnishee under Order 21 Rule 46A of CPC. If the attachment is made
E    under Order 21 Rule 46 of CPC, it would be open to him to question it
     under Order 21 Rule 58. If it is followed by an order under Order 21
     Rule 46A, it is open to him to dispute his liability under Order 21 Rule
     46C. In this regard, we may notice the judgment of High Court of Kerala,
     in Executive Engineer, T. C. Division, K.S.E. Board, Palghat versus
F    J. H. Sharma and another reported in AIR 1988 Ker 285, rendered
     by a Division Bench and speaking through U. L. Bhat, J. The High
     Court, inter alia, held as follows: -
                         “5. Attachment of debt in execution of a decree is
                         dealt with in R. 46 of O. XXI. Attachment is to be
G                        made by written order prohibiting the creditor from
                         recovering the debt and the debtor from making
                         payment thereof until further orders of the court. Sub-
                         r. (3) of R. 46 states that the debtor so prohibited
                         may pay the amount of debt into Court. This is only
                         an enabling provision. There is nothing in R. 46 which
H
 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                     23
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


                   compels the debtor to pay the amount of debt into        A
                   court.
                   6A. It has to be noticed that R. 46 does not contain
                   any provision enabling the garnishee to raise any
                   objection though it gives opportunity to the garnishee
                   to subject himself to the order by making payment        B
                   into Court. The next step is provided by R. 46A. He
                   has to be given notice either to pay the amount into
                   court or to show cause why he should not do so.
                   According to R. 46B, where he fails to pay the
                   amount in Court and also fails to appear and show
                   cause in answer to the notice, the court may order       C
                   him to comply with the terms of the notice and on
                   such order execution may issue as though such order
                   were a decree against him. This is the consequence
                   of his failure to respond in terms of the notice under
                   R. 46B. Where he appears and disputes his liability      D
                   R. 46C requires that the court should decide the
                   question as if it were an issue in a suit and upon the
                   determination of such issue the court should pass such
                   order as it deems fit. The Court may uphold the
                   contention raised by the garnishee or reject his
                   contention and pass appropriate orders. Such an order    E
                   is appealable under R. 46H. Thus the scheme of the
                   rules contemplates a specific opportunity being given
                   to the garnishee to show cause why he should not
                   pay the amount into Court. If he raises an objection
                   the court has a duty to consider the objection and       F
                   pass appropriate orders. The rules do not require him
                   to raise an objection suo motu before receiving a
                   show cause notice under R. 46A. The fact that he
                   did not suo motu file an objection when the attachment
                   was effected before judgment does not take away
                   his right under the above rules to raise an objection.   G

       Equally, we may notice the judgment of the High Court of Andhra
Pradesh reported in (1985) 3 AP LJ 103, Nuthalapati Kotaiah vs.
Executive Officer TTD Office at Guntur, wherein the High Court held
as follows: -
                                                                            H
24            SUPREME COURT REPORTS                          [2022] 18 S.C.R.


A                     6. For the service of notice or summons, Order 5 C.P.C.
                  provides an elaborate procedure providing adequate
                  safeguards in effecting notice on the defendant or the
                  respondent, as the case may be. Order 21 Rule 46-A gives
                  power to the Court to issue notice to the garnishee but
                  couched the language as ‘may’. When a statute create a
B
                  duty, one of the first questions for judicial consideration, is
                  what is the sanction for its breach or the mode for compelling
                  the performance of the duty. This question usually resolves
                  itself into an enquiry whether the provision is mandatory or
                  directory viz., whether absolute or, discretionary. If it is
C                 directory, the Court cannot interfere to compel performance
                  or the act does not entail with invalidity. But if the act is
                  mandatory, disobedience entails legal consequences which
                  may take the shape of a public or private remedy obtainable
                  in accordance with law. It is, however, a well recognised
                  canon of construction that where power is given to a Court
D
                  or a public officer for the purpose of being used for the
                  benefit of persons to be affected upon the performance of
                  which they are entitled to call for its exercise, the power
                  ought to be exercised to effectuate the purpose for which it
                  was given. Though the word ‘may’ appears to be an enabling
E                 word, when the object of the power is to affect a legal
                  right, it must be construed to be mandatory and has its
                  substitute as ‘shall’.
            The learned single Judge of the Madras High Court in The Madurai
     City Municipal Corporation, represented by its Commissioner,
F    Madurai Vs. N. Baskara Panian & Another, 1998 SCC Online Mad
     75, no doubt, while dealing with the question whether a fresh attachment
     is required under Order 21 Rule 46 of CPC when there is an attachment
     before judgment took the view that the earlier attachment would suffice.
           28. In this case, there is no attachment of the debt in the form of
G    the money lying in deposit. The order which is passed is expressly made
     under Order 21 Rule 46A. Certainly, this is not the manner in which an
     order could have been passed within the meaning of Order 21 Rule
     46A. There is a definite scheme as already noticed which is clear from
     the perusal of Order 21 Rule 46 and by the subsequent additions to the
     law by the amendment of the year 1976 which is contained in Order 21
H
 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                        25
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


Rule 46A to Order 21 Rule 46I. It would unerringly point to the provisions     A
being mandatory. Therefore, the High Court appears to be right in its
finding that the Execution Court should have first attached the debt under
Order 21 Rule 46 before proceeding to pass the order under Order 21
Rule 46A of CPC.
       29. In this case, we must further bear in mind that the guarantor       B
(the mother of the Patel Brothers) is not the garnishee even according
to the appellant. In fact, we are unable to think of as to how the mother
of the Patel brothers could be said to owe any money to her sons. At
least nothing has been pressed before us to indicate how the mother
could be the garnishee.
                                                                               C
        30. The contention, however, raised by the appellant is that it is
not the mother and in fact the appellant was also aware that the mother
was not alive as of the date of the making of the application and therefore
there could not have been any order against the mother. The argument
is that after the auction, the amount in excess of the judgment debt in the
other suit come in, to the account of the Court and the Officer of the         D
Court therefore became the debtor or it is the Officer would be the
garnishee. We have our reservations about accepting this line of argument.
Order 21 Rule 46 contemplates, inter alia, a debt. It is difficult to put
the Nazir in the position of a debtor. We cannot understand the relationship
between the Nazir in the facts of this case and judgment debtors in the        E
other case is one of debtor and creditor respectively. Therefore, we
would think that the very application as such may have been flawed.
       31. However, in the facts of this case there remains another aspect.
It would appear that the amount for which the property of the guarantor
(mother of the Patel brothers) was sold was Rs.39,25,000/-. There is           F
order dated 03.02.2007 passed by the Execution Court. The said order
directed the distribution of the amount fetched in the Court auction in the
following manner:- Rs.18,56, 750/- was to be paid to the appellant on
account of the deemed decree in Lavad Suit No.576/1988 and Rs.
6,89,416/- each was to be paid to the two Patel brothers in the present
case. Further Rs.6,89,416/- was also to be paid to another brother of          G
the Patel brothers who was a partner in the firm which was the defendant
in the other suit. The position therefore, which we have before us is the
amount representing the share of the excess amount lies in the Court
deposit i.e. the aggregate of Rs.6,89,416/- due to Nikhil Balkrushna
Patel and Rs.6,89,416/- to Ravindra Balkrushna Patel. We are not               H
26             SUPREME COURT REPORTS                           [2022] 18 S.C.R.


A    certain as to what has happened to the amount of Rs.6,89,416/- which
     is earmarked as share of Hemant Balkrushna Patel. Hemant
     Balkrushna Patel is not a party to the present litigation.
             32. Even proceeding on the basis of the flaw which existed in the
     application filed under Order 21 Rule 46A and furthermore the procedure
B    followed by the Court first in not attaching the fund under Order 21 Rule
     46, the question would arise as to whether the complaint with which we
     began in the judgment namely the woes of the decree holder must receive
     some redress. The award is passed as we notice in the year 1988
     nearly 34 years ago. The amount in deposit upon the death of the mother
     of the Patel brothers would naturally belong to her legal heirs. We posed
C    the question to the learned counsel for the respondents as to whether
     apart from the three Patel brothers whether there is any other legal heir.
     The learned counsel for the respondents would submit that there is no
     other legal heir available. We asked the learned counsel for the
     respondents whether he has a case that the mother has left behind a
D    Will. It is pointed out to us that there is no Will left behind by the mother.
     This will bring the case to Section 15 of the Hindu Succession Act, 1956,
     which deals with succession to a Hindu female who died intestate. The
     Patel brothers would indeed be the Class-I heirs being the sons. We
     must notice in this regard that there is no case for the respondents that
     the order dated 03.02.2007, which is passed with them on the party
E    array has been called in question by the Patel brothers. We, therefore,
     take it to be a case where the amount was lying in deposit and it was by
     the subsequent order dated 03.02.2007 to be appropriated to the two
     Patel brothers involved in this case before us and to the other brother. At
     this juncture, we may notice Order 21 Rule 52 again. It is in fact relied
F    upon by none other than the learned counsel for the respondents. We
     would think that in the facts of this case, it would be appropriate and
     proper to proceed on the basis that the procedure under Order 21 Rule
     52 ought to have been followed. In the facts, we would, therefore, feel
     that it is appropriate and just to hold as follows: - The second execution
     petition is maintainable. The filing of the second execution petition was
G    not illegal for the reason that there was no order under Section 39 of
     CPC. The filing of the application under Order 21 Rule 46A and the
     order passed as such by the Execution Court may be flawed.
           In the facts of this case, the more appropriate order would have
     been one under Order 21 Rule 52 of CPC. The amount is lying in
H
 BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNA                          27
     PATEL DECEASED THR. HIS LRS & ORS. [K.M. JOSEPH, J.]


deposit with the same Court in which the appellant has moved the second          A
application for execution. We therefore, direct that the order passed by
the Execution Court must be treated as an order by which the attachment
has been made under Order 21 Rule 52 of CPC. By order dated
08.08.2022, this Court had permitted the respondents to withdraw the
amount lying in deposit in excess of Rs.12 lakhs. It would thus be open
                                                                                 B
to the appellant to proceed against the said amount, to the extent of
Rs.12 lakhs. The order will be treated as an order of attachment. We
must bear in mind also the fact that this Court was persuaded to pass an
order under which the amount lying in deposit in excess of Rs.12 lakhs
was allowed to be withdrawn by the respondents. No doubt, this is on
the basis that even accepting the liability of respondents the amount            C
lying in excess of Rs. 12 Lakhs should be made available to the
respondents. The Execution Court, namely, 4th Additional Senior Civil
Judge (Ahmedabad Rural) will therefore proceed with the matter in
accordance with law. However, we make it clear that the respondents-
Patel brothers had an opportunity to raise objections before the Execution
                                                                                 D
Court and the right which is given under Order 21 Rule 46C is for the
benefit of the garnishee. It is nobody’s case that the respondents-Patel
brothers are the garnishees.
      33. The Execution Court will however look into the complaint of
the respondents that the appellant has not properly accounted with
reference to the directions given by the Arbitrator regarding the                E
adjustment to be done of the amount which would be due to the
respondents under an award obtained by them. We leave it open to the
Execution Court to undertake the said exercise and it is for the Execution
Court to finally decide the exact amount which is to be made available to
the appellant.                                                                   F
        The appeals are allowed in the above fashion and the impugned
order will stand set aside.
         Parties will bear their respective costs.
         Pending application(s), if any, stand disposed of.                      G

Ankit Gyan and Anurag Bhaskar                                 Appeals allowed.
(Assisted by : Bodhi Ramteke, LCRA)



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