BHAGYODAY COOPERATIVE BANK LTD. versus RAVINDRA BALKRISHNA PATEL DECEASED THROUGH HIS LRS & ORS on 16 November 2022

[2022] 18 S.C.R. 1

BHAGYODAY COOPERATIVE BANK LTD.

v.

RAVINDRA BALKRISHNA PATEL DECEASED THROUGHHIS 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-Bankgranted a financial facility to a firm (M/s. Vimal Traders, PartnershipFirm) of three partners (Respondents and one Gautam VishnuprasadTripathi) – Amount was not repaid – Lavad Suit was filed in 1988by the Appellant before the Board of Nominees u/ GCoSA 1961,which held to make payment with interest p.a. from the date of suittill realisation and cost of the suit to the Plaintiff (therein) – Matterwas adjudicated in the form of an arbitration proceeding –Certificate contemplated u/s. 103(a) of the Act came to be issued on17.09.1995 – Appellant filed execution application before CivilCourt – During pendency of said application, Jangam Warrant wasissued against Respondents (therein) for recovery – Appellant filedan application seeking withdrawal of the Execution Applicationwith liberty to file the petition before the Court of competentjurisdiction on the ground that the respondent had shifted the placeof residence – Withdrawal application was allowed on 02.02.2005– On 19.01.2006, the Appellant-Bank filed an execution petitionbefore the 4th Additional Senior Civil Judge – Appellant hadobtained a decree against another partnership firm in which theRespondents were partners alongwith one ‘H’ – Deemed decreeobtained against the said parties in previous Lavad Suit again underthe Act, was put to execution – Mother of respondents, who stoodas guarantor for the loan granted in the transaction which led toLavad Suit – Her property was put to sale in the Court auction –After auction was held there was excess amount which belongs tomother and lying in deposit – Based on the developments in theother suit namely the holding of the Court auction in connection

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Awith the enforcement of the liability of the mother as guarantor, anapplication was filed on 24.01.2007 by Appellant – The purport ofthe application appears to be to obtain satisfaction of the deemeddecree with reference to the amount which was realized in the Courtauction – Respondents filed objection, which was dismissed andheld that the amount to be deposited and the interest and cost beBcome on the share of respondents herein – Respondent challengedthe order – High Court held that (Impugned Order) - a) Theexecution application filed by Appellant is not maintainable as afterthe first application was dismissed on default the application beforesecond execution court was not within period of limitation; b)Cexecution petition filed to get it transferred to second court wasdone without an order u/s. 39 of CPC; c) without observing themandatory requirement i.e., to affords an opportunity to the personaggrieved that is the garnishee to raise his objection to theattachment the Execution Court had allowed the prayer under Order21 Rule 46A – On appeal, held: Mere dismissal of the firstDapplication on the ground of default may not result in the decreeholder being precluded from filing a fresh execution petition–provided it is within time When the Authority passed the awardunder the Act, it was a Civil Court – It is not a Court within the–meaning of Section 38 of CPC For effective working of SectionE39 of CPC, there must be a Court which has passed a decree - Inthe context of the CPC there is no such Court within the meaning ofSection 38 in these cases instead, there was essentially arbitrationproceedings 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 – WordsF‘decree as defined in clause (2) s. 2 of CPC’ as used in s. 103 of theAct is to reinforce in the concept of a decree with greater clarity–and by way of abundant caution The mere presence of these wordsby itself cannot support the attempt at distinguishing the principlewhich is that in view of the fact that Sections 38 and 39 of the CPCGare not as such applicable, the decree-holder may seek to executethe decree in any Court which otherwise has jurisdiction – In caseof debt, share and other property covered u/ Order 26 Rule 46procedures begins with an attachment, but in this case there is noattachment of debt in the form of money lying in the deposit, whichis not a manner to pass order with Order 21 Rule 46 A – In theH

BHAGYODAY COOPERATIVE BANK LTD. v. RAVINDRA BALKRISHNAPATEL DECEASED THR. HIS LRS & ORS.

facts, therefore, the second execution petition is maintainable – Thefiling of the second execution petition was not illegal for the reasonthat there was no order under Section 39 of CPC – The filing of theapplication under Order 21 Rule 46A and the order passed as suchby the Execution Court may be flawed.

Allowing the appeals, the Court

HELD: 1. Mere dismissal of the first application on theground of default may not result in the decree holder beingprecluded from filing a fresh execution petition provided it iswithin time. [Para 21][17-F]

Conclusion

2. The plea of limitation though pressed before theExecution Court was not pursued by the Respondents beforethe High Court. No doubt, a pure question of law may be permittedto be raised in an appeal generated by the grant of special leaveunder Section 136 of the Constitution of India. Section 103 of theAct appears to contemplate that after the adjudication by theAuthorities, which would include any appeal carried therefrom,the order passed, is to be certified by the Registrar or theLiquidator. This would give birth to what is by way of a deemingprovision a decree of a Civil Court. In this case, an award waspassed in the year 1988 and the certificate was issued in the year1995. As to when the application was made by the Appellantseeking the certificate and what was the time taken by theAuthority to issue a certificate are all matters shrouded in mystery.There is a case for the Appellant, no doubt, that the apprehensionof the learned Counsel for the Respondents that if the creditorsleeps over the matter even for a period beyond time providedfor executing a decree and makes an application with great delaythen it would result in a completely inequitable situation may notrise as the facts speak otherwise. [Para 22][17-G-H; 18-A-D]

3. The Respondents may not be justified in seeking todistinguish the judgment of this Court Sundaram Finance Limited.It cannot be in the region of doubt that when the Authority passedthe award under the Act, it was a Civil Court. It is not a Courtwithin the meaning of Section 38 of Code of Civil Procedure. Ifthere is no Court, which can be said to have passed the award inthis case, then it is inconceivable as to how it could be maintained A

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Ain the same breath that it is indispensable to the maintaining ofthe execution proceedings in another Court that the Court whichpassed the decree must necessarily transfer the proceedings tothe latter Court. For the effective working of Section 39 of Codeof Civil Procedure, there must be a Court which has passed adecree. The words ‘decree as defined in Clause (2) of Section 2Bof Code of Civil Procedure’ as used in Section 103 of the Act is toreinforce in the concept of a decree with greater clarity and byway of abundant caution. The mere presence of these words byitself cannot support the attempt at distinguishing the principlewhich has been laid down in the decision of Sundaram FinanceCLimited which is that in view of the fact that Sections 38 and 39 ofthe Code of Civil Procedure are not as such applicable, the decreeholder may seek to execute the decree in any Court whichotherwise has jurisdiction. This would mean that the finding bythe High Court in this regard is flawed and is liable to beoverturned. [Para 24][19-G-H; 20-A-E]D

4. In this case, there is no attachment of the debt in theform of the money lying in deposit. The order which is passed isexpressly made Under Order 21 Rule 46A. Certainly, this is notthe manner in which an order could have been passed within themeaning of Order 21 Rule 46A. There is a definite scheme asEalready noticed which is clear from the perusal of Order 21 Rule46 and by the subsequent additions to the law by the amendmentof the year 1976 which is contained in Order 21 Rule 46A toOrder 21 Rule 46I. It would unerringly point to the provisionsbeing mandatory. Therefore, the High Court appears to be rightFin its finding that the Execution Court should have first attachedthe debt under Order 21 Rule 46 before proceeding to pass theorder 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 illegalGfor the reason that there was no order under Section 39 of Codeof Civil Procedure. The filing of the application Under Order 21Rule 46A and the order passed as such by the Execution Courtmay be flawed. In the facts of this case, the more appropriate order would have been one under Order 21 Rule 52 of Code ofCivil Procedure. The amount is lying in deposit with the sameCourt in which the Appellant has moved the second applicationfor execution. It is directed that the order passed by the ExecutionCourt must be treated as an order by which the attachment hasbeen made Under Order 21 Rule 52 of Code of Civil Procedure.By order dated 08.08.2022, this Court had permitted theRespondents to withdraw the amount lying in deposit in excessof Rs. 12 lakhs. It would thus be open to the Appellant to proceedagainst the said amount, to the extent of Rs. 12 lakhs. The orderwill be treated as an order of attachment. The Execution Court,will therefore proceed with the matter in accordance with law.However, the Respondents-Patel brothers had an opportunity toraise objections before the Execution Court and the right whichis given Under Order 21 Rule 46C is for the benefit of thegarnishee. It is nobody’s case that the Respondents-Patelbrothers are the garnishees. [Para 32][26-G-H; 27-A-D]

6. The Execution Court will however look into thecomplaint of the Respondents that the Appellant has not properlyaccounted with reference to the directions given by the Arbitratorregarding the adjustment to be done of the amount which wouldbe due to the Respondents under an award obtained by them. Itis left open to the Execution Court to undertake the said exerciseand it is for the Execution Court to finally decide the exact amountwhich is to be made available to the Appellant. The impugnedorder is set aside. Appeals allowed. [Para 33][27-E-F]

Shivashankar Prasad Shah and Others Versus BaikunthNath Singh and Others 1969 (1) SCC 718: [1969] 3SCR 908; Sundaram Finance Limited versus AbdulSamad and Another (2018) 3 SCC 622: [2018] 10SCR 451; Nuthalapati Kotaiah vs. Executive OfficerTTD Office at Guntu (1985) 3 AP LJ 103; The MaduraiCity Municipal Corporation, represented by itsCommissioner, Madurai vs. N. Baskara Pandian &another 1998 SCC Online Mad 75; Executive Engineer, AB

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AT. C. Division, K.S.E. Boards, Palghat versus J. H.Sharma and another AIR 1988 Ker. 285 – referredto.

Case Law Reference

[1969] 3 SCR 908referred toPara 14B[2018] 10 SCR 451referred toPara 16

referred toPara 16

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8531-8532 of 2022.

From the Judgment and Order dated 27.03.2018 of the High CourtCof Gujarat at Ahmedabad in Letters Patent Appeal No.2647 of 2017 inSpecial 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.DThe Judgment of the Court was delivered by K.M. JOSEPH, J.

Leave granted.

E2. The woes of a decree holder begin after obtaining a decree. Itis in execution that a decree holder is confronted with an unimaginablylarge number of obstacles. With the facts as unfolded in the course ofthe judgment, we are reinforced in our belief that there is substance inthis complaint.

F3. 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 arebrothers and the third person was Shri Gautam Vishnuprasad Tripathi.Since the amount was not repaid, a Lavad Suit No.2265/1984 came tobe filed by the appellant-bank before the Board of Nominees under TheGGujarat Co-operative Societies Act, 1961 (hereinafter referred to as‘the Act’). The adjudicatory body passed an order on 23.09.1988. Theoperative 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 realisationHand cost of the suit to the plaintiff latest by 31.03.1989.

The garnish order passed below Exh.6 is made absoluteand the plaintiff is at liberty to execute the award againstthe G.S.I.C. for the said amount of Rs.1,50,000/- takingdue process of law after 31.03.1989. Lavad fee ofRs.510/- deposited by the plaintiff to be credited to theGovernment as fees.

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. Itreads as follows: - “103. Money how recovered.- Every order passed bythe Registrar or a person authorised by him underSection 93, or by the Registrar, his nominee or board ofnominees under Section 100 or 101, every order passedin appeal under Section 102, every order passed by aLiquidator under Section 110, every order passed bythe State Government in appeal against orders passedunder Section 110 and every order passed in revisionunder Section 155, shall if not carried out,- (a) on a certificate signed by the Registrar ora Liquidator, be deemed to be a decree of aCivil Court, as defined in clause (2) of Section2 of the Code of Civil Procedure, 1908 andshall, be executed in the same manner as adecree of such Court, or (b) be executed according to the provisions ofthe Land Revenue Code and the rulesthereunder for the time being in force for therecovery of arrears of land revenue:

Provided that, any application for the recovery in suchmanner of any such sum shall be made to the Collector, andshall be accompanied by a certificate signed by the Registrar,or by any Assistant Registrar to whom the said power hasbeen delegated by the Registrar. Such application shall bemade within twelve years from the date fixed in the orderand if no such date is fixed, from the date of the order.”

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A5. On the application apparently made by the appellant-Bank, thecertificate contemplated under Section 103 (a) of the Act came to beissued on 17.09.1995. In view of the provisions of Section 103 of theAct, since the order passed under Section 103 of the Act in this case isto be executed in the same manner as a decree of a Civil Court asdefined in clause (2) of Section 2 of the Code of Civil Procedure, 1908B(For short ‘CPC’), the appellant initially filed Execution ApplicationNo.777/1995 before the City Civil Court, Ahmedabad. It would appearthat the notice was not served in the Execution Application No.777/1995and the appellant according to it tried to serve the notice but it failed.Thereupon, the Execution Court passed the following order onC22.10.1997, which reads as under:- “When matter called out, neither darkhastdar nor his L.A.is present. From the record, it appears that the darkhastdarhas not taken any effective steps since long. However, inthe interest of justice, darkhastdar is granted, time till27.11.1997. If no effective step is taken till than thedarkhastdar- petition will stand automatically dismissed on27.11.1997.”

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6. Still further, the appellant on 27.11.1997 gave a new addressand filed an application. It is the further case of the appellant that theECourt was not working and there was a strike and the case stood postedto 10.12.1997. During the pendency of the Execution Application No.777of 1995, a Jangam Warrant was issued against the respondents forrecovery 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 theExecution Application with liberty to file the petition before the Court ofFcompetent jurisdiction. This was occasioned according to the appellant-Bank by shifting of the residence of the respondents. According to theappellant-Bank, the said application was allowed and the ExecutionApplication was permitted to be withdrawn by order dated 02.02.2005.On 19.01.2006, the appellant filed an execution petition before the 4thGAdditional Senior Civil Judge (Ahmedabad Rural).

7. At this juncture, we must notice another aspect. It would appearthat the appellant-Bank had obtained a decree against M/S. Virat PaperProcessors (a partnership firm) in which again Ravindra BalkrushanPatel and Nikhil Balkrushna Patel (hereinafter for brevity ‘PatelHbrothers’) were partners along with Hemant Balkrushna Patel (not a party herein). It must be noticed that all the three were brothers thoughthe firm was a different firm. The deemed decree obtained against thesaid parties in Lavad Suit No.576/1988 again under the Act, was put toexecution. It is here we must note another person whose role will becomeclear i.e., Savitaben Balkrushna Patel (Deceased)-the mother of thePatel brothers, who stood as guarantor for the loan granted in thetransaction which led to Lavad Suit No.576/1998. Her property wasfinally put to sale in the Court auction. A sum of Rs.39,25,000/- wasfetched and it was lying in deposit. The mother of the Patel brothersexpired on 18.06.2005.

8. Resuming the narrative with reference to the developments inthe suit with which we are concerned, after filing of the execution petitionas it were by the appellant in the new Execution Court apparently basedon the developments in the other suit namely the holding of the Courtauction in connection with the enforcement of the liability of the motheras guarantor, an application came to be filed on 24.01.2007. The purportof the application appears to be to obtain satisfaction of the deemeddecree with reference to the amount which was realized in the Courtauction. We may only notice the prayer as we find from Annexure-P7of 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 byinitiating legal procedure and amount thereof tothe tune of Rs. 39,25,000/- rupees thirty Nine lacstwenty five thousand only is deposited before theCourt in Special Darkhast no. 80/99 and afterdeducting the outstanding amount in specialDarkhast no. 80/99 with interest and cost,remaining amount is likely to be credited and thatamount is to be given to the opponents no. 2 and 3thus, your honour may be pleased to pass order ofgarnishi and direct the registrar/Nazir of the Courtof learned Civil Judge (S.D.) Saheb to depositedthe remaining credited amount in the saidexecution.

B. Your honour may be pleased to pass such otherand further relief as may be deemed fit.

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C. Your honour may be pleased to pass order tosend one copy of the order of this Garnishiapplication to keep it in Special Darkhast no. 80/99 pending before the Court of Shri BB Pathaksahib, Civil Judge S.D. Ahmedabad Rural.”

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9. The Patel brothers who are judgment debtors in the instantcase filed their objections. After considering their objections, the ExecutionCourt passed the following order.

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“Objection application Ex. 28 filed by theopponents no. 2 and 3 is hereby dismissed.

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Under the provisions of order 21 Rule 46A ofthe CPC, the Registrar and Nazir of the Court ofPrincipal Senior Civil Judge Saheb, Ahmedabad(rural) is hereby ordered to deposit the actualremaining amount in this Darkhast after makingpayment of the Darkhast, interest and cost comeon the share of opponent Ravindra BalkrishnaPatel and Nikhil Balkrishna Patel out of thecredited amount in Special Darkhast No.80-99.

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This order has been declared today on this10.04.2013 in the open Court.”

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It is this order which came to be challenged before the High Courtby the Patel brothers. The High Court by the impugned order has setaside the order passed by the Execution Court. It is being aggrievedthereby that the appellant-Bank is before us.F10. We heard Mr. Preetesh Kapur, learned senior counsel for theappellant and also Mr. Aniruddha Deshmukh, learned counsel appearingon 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 inGthe first Execution Court, namely, Execution Application No.777/1995,having been dismissed, the application which is filed subsequently in theyear 2006 before the Second Execution Court, if we may describe it assuch was not maintainable. It is found that the first application havingbeen dismissed for default, the proper course would have been to approachHthe said Court within the period of limitation. It is found that the said order dismissing the execution application should have been set asidewithin a period of 30 days since Section 5 of the The Limitation Act,1963 is not available in execution proceedings, the subsequent executionpetition is barred.

12. Next, it is found that in view of Section 38 of CPC a decreecould be executed either by the Court which passed it or the Court towhich the decree was transferred. Section 39 of the CPC provides forthe exclusive mechanism by which the decree could be ordered to betransferred. In the facts of this case, it was found there was no approachmade by the appellant-Bank to the Court in which the execution petitionwas originally filed to get it transferred to the second Court in whichwithout an order under Section 39, the appellant-Bank filed the secondapplication in the year 2006. Therefore, the very petition filed before theExecution Court on the second occasion was not maintainable.

13. Further, the Court elaborated on the flaw involved in theapplication maintained under Order 21 Rule 46A of CPC and, moreimportantly, the actual order that was passed thereunder. The reasoningof the High Court is as follows: - Before an order is passed under Order21 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 21Rule 46 of CPC. It is found that Order 21 Rule 46 of CPC insisting on anorder of attachment as is clear from a perusal of Order 21 Rule 46A ofCPC serves a salutary purpose. It affords an opportunity to the personaggrieved that is the garnishee to raise his objection to the attachment.Valuable rights are vouchsafed to the garnishee and the right is to beenforced through the mechanism of Order 21 Rule 46C. Order 21 Rule58 provides for objection to attachment. A person aggrieved by an orderunder Order 21 Rule 58 of CPC has further rights in the form of theappeals as provided in law. In this case, it was found that withoutobserving the mandatory requirement of attachment it is that the ExecutionCourt had allowed the prayer under Order 21 Rule 46A. It must benoticed that though the argument relating to the execution petition beingbarred by limitation was pursued vigorously before the Execution Court,it was not pressed before the High Court by the respondents.

CONTENTIONS OF THE PARTIES

14. Mr. Preetesh Kapur, learned senior counsel for the appellantwould with reference to the facts as we have noticed make the followingsubmissions. He would point out that the mere fact that the earlier A

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Aexecution petition was dismissed would not stand in the way of theprocessing and considering of the second execution petition. The executionpetition was dismissed only if at all on account of default. In fact, it waswithdrawn with liberty. But even if it is dismissed on default, in view ofthe law laid down by judgment of this Court in 1969 (1) SCC 718,Shivashankar Prasad Shah and Others Versus Baikunth Nath SinghBand Others, the second petition was maintainable. It was held as followsin the said decision: - “6. The courts in India have generally taken the viewthat an execution petition which has been dismissedfor the default of the decree-holder though by theCtime that petition came to be dismissed, the judgment-debtor had resisted the execution on one or moregrounds, does not bar the further execution of thedecree in pursuance of fresh execution petitions filedin accordance with law-see Lakshmibai AnantDKondkar v. Rayji Bhikaji Kondkar, (XXXI, BLR400). Even the dismissal for default of objectionsraised under Section 47, Civil Procedure Code doesnot operate as res judicata when the same objectionsare raised again in the course of the execution-seeBahir Das Pal and Another v. Girish ChandraEPal, AIR 1923 Cal 287; Bhagwati Prasad Sah v.Radha Kishun Sah and Others, AIR 1950 Pat354; Jethmal and Others v. Mst. Sakina, AIR 1961Raj 59; Bishwannath Kundu v. Smt. Subala Dassi,AIR 1962 Cal 272. We do not think that the decisionFin Ramnarain v. Basudeo, ILR XXV Pat 595 onwhich the learned counsel for the appellant placedgreat deal of reliance is correctly decided. Hencewe agree with the High Court that the plea of resjudicata advanced by the appellant is unsustainable.”

G15. The dismissal of the earlier execution petition on the groundof default will not bar the filing of a fresh execution as long as the secondpetition is filed within the period of limitation. In this case, limitationwould begin to run only on obtaining the certificate contemplated underSection 103 of the Act. The certificate was obtained in the year 1995.Therefore, the second execution petition filed in the year 2006 was wellH

within the period of 12 years and therefore the execution petition is notbarred. As far as the findings of the High Court that Sections 38 and 39of the CPC governed the facts of the case, it is contended that the Courthas erred in not bearing in mind the following a vital feature present inthis case. This is not a case where a decree has been passed by a CivilCourt. What has happened is in terms of the Act on a claim by theappellant-Bank which is a creditor the matter was adjudicated in theform of an arbitration proceeding. At the end of the adjudication, theplaintiff being successful, an award was passed. After the award ispassed, a certificate has to be applied for. The certificate is grantedunder Section 103 of the Act. The certificate granted under Section 103of the Act only results in the order passed becoming executable as adecree. He further points out that even after the certificate is passed itis not as if the order was a decree as such. All that the law provides isthat it is enforceable as a decree. He would submit that similar provisionsare contained in the Arbitration and Conciliation Act, 1996.

16. He drew our attention in this regard to the judgment of thisCourt reported in Sundaram Finance Limited versus Abdul Samadand Another, (2018) 3 SCC 622.Therein this Court was consideringthe question which was similar to the question which arises in the factsof this case, namely, whether the filing of the execution petition is governedby the regime provided under Sections 38 and 39 of the CPC. We noticethe following, inter alia, discussion: - “14. We would now like to refer to the provisions of thesaid Act, more specifically Section 36(1), which dealswith the enforcement of the award:

“36. Enforcement. — (1) Where the timefor making an application to set aside the arbitralaward under Section 34 has expired, then, subjectto the provisions of sub-section (2), such awardshall be enforced in accordance with theprovisions of the Code of Civil Procedure, 1908(5 to 1908), in the same manner as if it were adecree of the court.”

The aforesaid provision would show that an award is tobe enforced in accordance with the provisions of the saidCode in the same manner as if it were a decree. It is, AB

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Athus, the enforcement mechanism, which is akin to theenforcement of a decree but the award itself is not adecree of the civil court as no decree whatsoever ispassed by the civil court. It is the Arbitral Tribunal, whichrenders an award and the tribunal does not have thepower of execution of a decree. For the purposes ofBexecution of a decree the award is to be enforced in thesame manner as if it was a decree under the said Code.

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20. We are, thus, unhesitatingly of the view that theenforcement of an award through its execution can befiled anywhere in the country where such decree can beCexecuted and there is no requirement for obtaining atransfer of the decree from the court, which would havejurisdiction over the arbitral proceedings.”

17. He would therefore submit that once second application wasnot barred by limitation, a fresh execution petition could be filed in theDCourt which would have jurisdiction. The jurisdiction of the second Courtwould have to be determined with reference to the element of theresidence of the judgment debtors within the jurisdiction of that Court orthe existence of property as the case may be within the limits of theCourts jurisdiction. As far as the finding that Order 21 Rule 46 of CPCEwas observed in its breach before the Court passed the Order 21 Rule46A of CPC, he would submit that the garnishee in the case is not themother of the Patel brothers. In fact, the mother as noticed had passedaway in the year 2005 and the application itself was filed only in the year2007. The case of the appellant is that after the auction was held inexecution of the decree in the other suit filed by the appellant afterFsatisfying the decree debt in the said case, there was an excess sum. Itbelonged to the mother and it was lying in deposit and as the motherpassed away, therefore, it became payable by the Court’s Nazir to thejudgment debtors in the said case two of whom are the judgment debtorsbeing the Patel brothers involved in this case also. Therefore, the argumentGis that it is the Court Nazir who is the garnishee as he was under anobligation or debt to make payment of the said amount to the judgmentdebtors which included Patel brothers involved in this case. He wouldfurther submit that with reference to the wide powers available to theExecution Court under Section 51 of CPC that at any rate it would be H

highly unjust to deny the decree holder the fruits of its decree and toproscribe the Court from getting at assets of the judgment debtors whichwere lying in a deposit in the same Court. In other words, the proceedsof the Court auction after satisfying the decree debt of the appellant inthe other case and payable to the judgment debtors after death of theguarantor (mother) was lying in deposit of the second Execution Court.On the strength of the powers available under Section 51 as also inherentpower under Section 151 of CPC, the Court must be ceded the power tomake 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 pointthat as far as the interpretation placed under Sections 38 and 39 of CPCby the High Court is concerned it is unexceptionable. When confrontedwith the judgment of this Court, in Sundaram Finance Limited(supra)relied upon by the learned counsel for the appellant, he would make anattempt at distinguishing the said judgment. This attempt is bolsteredwith reference to the words ‘decree as defined in clause (2) of Section2 of CPC’ as found in Section 103 of the Act. He would submit that thisdistinguishable text of the Act with which this Court is concerned mayrender 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 itsinterpretation of Order 21 Rule 46 and Order 21 Rule 46A. He supportedhis contention in this regard to three judgments of the High Courts whichare as follows: -Nuthalapati Kotaiah vs. Executive Officer TTD Officeat Guntur, (1985) 3 AP LJ 103, The Madurai City MunicipalCorporation, represented by its Commissioner, Madurai vs. N.Baskara Pandian & another, 1998 SCC Online Mad 75 andExecutive Engineer, T. C. Division, K.S.E. Boards, Palghat versusJ. H. Sharma and another, AIR 1988 Ker. 285. He would submit thatOrder 21 Rule 46 read with Order 21 Rule 46A of CPC and the provisionswhich succeed these provisions enact a scheme which is intended tosafeguard the interest of the garnishee. Any deviation from the mandatoryregime will reach grave injustice to the garnishee as found by the HighCourt and also echoed in the judgments relied upon by him. He wouldfurther point out that Order 21 Rule 52 of CPC provides for the procedureto be followed in a case like the present. Order 21 Rule 52 of CPC,reads as follows: - AB

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AORDER 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 orpublic officer, the attachment shall be made by a notice to such Court orofficer, requesting that such property, and any interest or dividendBbecoming payable thereon, may be held subject to the further orders ofthe 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 andany other person, not being the judgment-debtor, claiming to be interestedCin 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 acase based on the mother (deceased) being a garnishee and if the furthercase based on the Court Officer being a garnishee falls to the ground,Dthe only express provision which must be understood as giving effect tothe residuary clause found in both Section 51 of CPC and Order 21 Rule11 must be followed. Section 51 of the CPC, inter alia, provides asfollows: -

51. Powers of Court to enforce execution.—Subject to suchEconditions and limitations as may be prescribed, the Court may, on theapplication 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 withoutattachment of any property; F

(c) by arrest and detention in prison [for such periodnot exceeding the period specified in Section 58,where arrest and detention is permissible underthat section]; (d) by appointing a receiver; or G

(e) in such other manner as the nature of the reliefgranted 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.HNot unnaturally there is replication of the words ‘such other manner as

may be needed’. He would still further point out that Order 21 Rule 46Aof CPC was not available to the appellant for another formidable reason.Order 21 Rule 46 expressly is inapplicable in regard to movable propertynot in the possession of the judgment debtor where the property isdeposited in or in the custody of the Court. Therefore, it is contendedthat if money fetched in a Court auction can be described as propertyand it is deposited in the Court then in view of the express provision ofOrder 21 Rule 46, it is not applicable. The scheme of Order 21 Rule 46followed by Order 21 Rule 46A may not be available and this may haveto be dealt with under Order 21 Rule 52. He would finally conclude bycontending that on the facts there is another obstacle for the appellant torealise the fruits of the decree. It is submitted that a perusal of theaward by the authority under the Act would reveal that the judgmentdebtors have obtained an award against a third party. It was ordered inthe award that the appellant would be entitled to execute the said awardin realizing the amount which was awarded in favour of the appellant inthis case. This has not been accounted for. It is pointed out that the saidprocess would necessarily have to be undertaken even if this Court isinclined to grant any relief to the appellant.

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21. The first question we have to consider is whether the dismissalof the execution petition filed by the appellant apparently on the groundof default or withdrawal of the first execution petition will result in a barfor the filing or the prosecuting of the Second execution petition. In thisregard, in fact, we must notice that the learned counsel for the respondentdoes not seek to raise any objection as such to the contentions of theappellant that the second execution application would be maintainableprovided it is within the period of limitation. We also find merit in thecontentions of the appellant that the mere dismissal of the first applicationon the ground of default may not result in the decree holder beingprecluded from filing a fresh execution petition provided it is within time.

22. This brings us to the aspect of limitation. The plea of limitationthough pressed before the Execution Court was not pursued by therespondents before the High Court. No doubt, a pure question of lawmay be permitted to be raised in an appeal generated by the grant ofspecial leave under Section 136 of the Constitution of India. We mayonly observe that what Section 103 of the Act contemplates is grant ofcertificate signed by the Registrar or the Liquidator. This is to be preceded AB

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Aby the requirement of words ‘shall if not carried out’. In other words,what Section 103 of the Act appears to contemplate is that after theadjudication by the Authorities which would include any appeal carriedtherefrom, the order passed, inter alia, is to be certified by the Registraror the Liquidator. This would give birth to what is by way of a deemingprovision a decree of a Civil Court. In this case, we may only notice thatBan award was passed in the year 1988 and the certificate was issued inthe year 1995. As to when the application was made by the appellantseeking the certificate and what was the time taken by the Authority toissue a certificate are all matters shrouded in mystery. There is a casefor the appellant, no doubt, that the apprehension of the learned counselCfor the respondents that if the creditor sleeps over the matter even for aperiod beyond time provided for executing a decree and makes anapplication with great delay then it would result in a completely inequitablesituation may not rise as the facts speak otherwise. We do not intend tohowever in this case go to this question in greater detail, particularly inview of the fact that it was not pursued.D23. The next question which arises is the effect of the interplay ofSections 38 and 39 of CPC. They are as follows: -

38. Court by which decree may be executed.—A decree may beexecuted either by the Court which passed it, or by the Court toEwhich it is sent for execution.

39. Transfer of decree.—(1) The Court which passed a decreemay, on the application of the decree-holder, send it for executionto another Court [of competent jurisdiction], —

(a) if the person against whom the decree is passedactually and voluntarily resides or carries onbusiness, or personally works for gain, within thelocal limits of the jurisdiction of such other Court,or F

(b) if such person has no property within the locallimits of the jurisdiction of the Court which passedthe decree sufficient to satisfy such decree andhas property within the local limits of thejurisdiction of such other Court, or G

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(c) if the decree directs the sale or delivery ofimmovable property situate outside the local limitsof the jurisdiction of the Court which passed it, or (d) if the Court which passed the decree considersfor any other reason, which it shall record inwriting, that the decree should be executed bysuch other Court.

(2) The Court which passed a decree may of its own motionsend it for execution to any subordinate court of competentjurisdiction.

[(3) For the purposes of this section, a Court shall be deemedto be a court of competent jurisdiction if, at the time of making theapplication for the transfer of decree to it, such Court would havejurisdiction to try the suit in which such decree was passed.]

[(4) Nothing in this section shall be deemed to authorise theCourt which passed a decree to execute such decree against anyperson or property outside the local limits of its jurisdiction.]

It is clear that under the scheme of the CPC, if a decree is passedby a Civil Court, then either the Court which passed the decree canexecute it or the Court to which the decree is transferred can executethe decree. Section 39 of the CPC speaks of the powers of the transferorcourt. It also provides for the decree holder applying to the Court whichpassed the decree. The question, however, is whether this regime isapplicable in the facts of this case. We have noticed the judgment of thisCourt rendered no doubt in the context of the Arbitration andConciliation Act, 1996. The only point which is raised before us todistinguish the said judgment by the learned counsel for the respondentsis that in view of the use of words ‘decree as defined in clause (2) ofSection 2 of CPC’, in Section 103 of the Act, the principle may not beavailable.

24. We are of the view that the respondents may not be justifiedin seeking to distinguish the judgment of this CourtSundaram FinanceLimited(supra). It cannot be in the region of doubt that when the Authoritypassed the award under the Act, it was a Civil Court. It is not a Courtwithin the meaning of Section 38 of CPC. If there is no Court, whichcan be said to have passed the award in this case, then it is inconceivable A

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Aas to how it could be maintained in the same breath that it is indispensableto the maintaining of the execution proceedings in another Court that theCourt which passed the decree must necessarily transfer the proceedingsto the latter Court. For the effective working of Section 39 of CPC, inother words, there must be a Court which has passed a decree. In thecontext of the CPC, we are of the view that there is no such CourtBwithin the meaning of Section 38 in these cases. Instead, we have whatis essentially arbitration proceedings and what is passed by the saidauthority is clothed only with the effect of a decree and it is enforceableas a decree. No doubt on the certificate being granted it resulted in adeemed decree. In such circumstances, we are of the view that there isCno merit in the contention of the respondents. The attempt to distinguishthe judgment based on the presence of the words ‘decree as defined inclause (2) of Section 2 of CPC’ is equally misplaced. This is for thereason 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 reinforcein the concept of a decree with greater clarity and by way of abundantDcaution. The mere presence of these words by itself cannot support theattempt at distinguishing the principle which has been laid down in thedecision ofSundaram Finance Limited(supra) which is that in view ofthe 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 whichEotherwise has jurisdiction. This would mean that the finding by the HighCourt in this regard is flawed and is liable to be overturned.

25. This brings us to the last of the substantive contentions whichhave been debated before this Court. Undoubtedly, Order 21 Rule 46Aof CPC is part of the scheme of the provisions relating to executions andFit must be understood with reference to the reliefs which can be claimedby the decree holder as provided in both Section 51 and Order 21 Rule11 of CPC. We have already noticed Section 51 and we have also noticedOrder 21 Rule 11. The lawgiver has elaborated the manner in whicheach of these sub heads under which a decree holder may execute adecree. For instance, the aspect of attachment of various kinds ofGproperties are found to be separately dealt with in Order 21 of CPC, andthe procedure to be followed has been detailed thereunder. Order 21Rule 46 apparently deals with attachment of debt, share and other propertybut an important distinguishing feature is that the debt, share and otherproperty must not be in the possession of the judgment debtor to attract H

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Order 21 Rule 46. The exception is in regard to ‘such other property’which though not in the possession of the judgment debtor, is propertydeposited or is in the custody of any Court. In other words, in regard tosuch property Order 21 Rule 46 and therefore Order 21 Rule 46A willnot apply. Order 21 Rule 46A of CPC was in fact, inserted by Act 104 of1976 with effect from 01.02.1997. So are the rest of the provisions whichinclude Order 21 Rule 46B to Order 21 Rule 46I of CPC. The schemewould appear to be as follows. In the case of debt, share and otherproperty which is covered by Order 21 Rule 46 the procedure beginswith an attachment. It is to be made by a written order. The orderprohibits the creditor recovering the debt and the debtor from makingpayment until further orders of the Court. The copy of the order soprohibiting the parties is to be affixed on a conspicuous part of the Courthouse and another copy is to be sent to the debtor. The debtor of thejudgment debtor is prohibited from making the payment. He may paythe amount of debt into the Court and such payment will be a dischargefor him as if he has made the payment to his immediate creditor.

26. Order 21 Rule 46A of CPC, then deals with the notice to begiven to the garnishee. A garnishee is obviously a person who owes adebt 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 anorder of garnishee against ‘A’. ‘A’ would then be prohibited from makingthe payment to ‘B’. ‘B’ would stand prohibited from receiving the debtfrom ‘A’.

27. It is clear from Order 21 Rule 46A that in the case of debtwhich must be understood as a debt spoken of in Order 21 Rule 46 ofCPC subject to what we will say immediately hereinafter, it is insistedupon by the lawgiver that the debt must have been attached under Order21 Rule 46. There is a further qualification as regards debt. Order 21Rule 46A excepts, debt secured by a mortgage or a charge. Once theseconditions are fulfilled, then upon an application being made by the‘attaching creditor’ a notice may be issued to the garnishee who in theexample we have given, is ‘A’ calling upon him either to pay the debt orso much of it as would be sufficient to satisfy the decree and the cost ofexecution or show cause as to why he should not do so. Under Order 21Rule 46B, if the garnishee does not pay the amount forthwith or he doesnot appear in the case of a show cause, the Court is empowered toorder the garnishee to comply with the terms of the notice. The Court is AB

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Aempowered 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 disputesliability, the Court may order that any issue or question necessaryfor the determination of liability shall be tried as if it were an issueBin a suit, and upon the determination of such issue shall makesuch order or orders as it deems fit:

Provided that if the debt in respect of which theapplication under Rule 46-A is made is in respect of asum of money beyond the pecuniary jurisdiction of theCCourt, the Court shall send the execution case to theCourt of the District Judge to which the said Court issubordinate, and thereupon the Court of the DistrictJudge or any other competent Court to which it may betransferred by the District Judge shall deal with it in thesame manner as if the case had been originally institutedDin that Court.

Therefore, it is clear that the lawgiver has contemplated to conferinvaluable rights on the garnishee in the form of empowering him tochallenge the attachment which is necessarily involved in the order ofgarnishee under Order 21 Rule 46A of CPC. If the attachment is madeEunder Order 21 Rule 46 of CPC, it would be open to him to question itunder Order 21 Rule 58. If it is followed by an order under Order 21Rule 46A, it is open to him to dispute his liability under Order 21 Rule46C. In this regard, we may notice the judgment of High Court of Kerala,in Executive Engineer, T. C. Division, K.S.E. Board, Palghat versusFJ. H. Sharma and another reported in AIR 1988 Ker 285, renderedby a Division Bench and speaking through U. L. Bhat, J. The HighCourt, inter alia, held as follows: - “5.Attachment of debt in execution of a decree isdealt with in R. 46 of O. XXI. Attachment is to bemade by written order prohibiting the creditor fromrecovering the debt and the debtor from makingpayment thereof until further orders of the court. Sub-r. (3) of R. 46 states that the debtor so prohibitedmay pay the amount of debt into Court. This is onlyan enabling provision. There is nothing in R. 46 which G

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compels the debtor to pay the amount of debt intocourt.

6A. It has to be noticed that R. 46 does not containany provision enabling the garnishee to raise anyobjection though it gives opportunity to the garnisheeto subject himself to the order by making paymentinto Court. The next step is provided by R. 46A. Hehas to be given notice either to pay the amount intocourt or to show cause why he should not do so.According to R. 46B, where he fails to pay theamount in Court and also fails to appear and showcause in answer to the notice, the court may orderhim to comply with the terms of the notice and onsuch order execution may issue as though such orderwere a decree against him. This is the consequenceof his failure to respond in terms of the notice underR. 46B. Where he appears and disputes his liability

R. 46C requires that the court should decide thequestion as if it were an issue in a suit and upon thedetermination of such issue the court should pass suchorder as it deems fit. The Court may uphold thecontention raised by the garnishee or reject hiscontention and pass appropriate orders. Such an orderis appealable under R. 46H. Thus the scheme of therules contemplates a specific opportunity being givento the garnishee to show cause why he should notpay the amount into Court. If he raises an objectionthe court has a duty to consider the objection andpass appropriate orders. The rules do not require himto raise an objection suo motu before receiving ashow cause notice under R. 46A. The fact that hedid not suo motu file an objection when the attachmentwas effected before judgment does not take awayhis right under the above rules to raise an objection.

Equally, we may notice the judgment of the High Court of AndhraPradesh reported in (1985) 3 AP LJ 103, Nuthalapati Kotaiah vs.Executive Officer TTD Office at Guntur,wherein the High Court heldas follows: - AB

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A6. For the service of notice or summons, Order 5 C.P.C.provides an elaborate procedure providing adequatesafeguards in effecting notice on the defendant or therespondent, as the case may be. Order 21 Rule 46-A givespower to the Court to issue notice to the garnishee butcouched the language as ‘may’. When a statute create aBduty, one of the first questions for judicial consideration, iswhat is the sanction for its breach or the mode for compellingthe performance of the duty. This question usually resolvesitself into an enquiry whether the provision is mandatory ordirectory viz., whether absolute or, discretionary. If it isCdirectory, the Court cannot interfere to compel performanceor the act does not entail with invalidity. But if the act ismandatory, disobedience entails legal consequences whichmay take the shape of a public or private remedy obtainablein accordance with law. It is, however, a well recognisedcanon of construction that where power is given to a CourtDor a public officer for the purpose of being used for thebenefit of persons to be affected upon the performance ofwhich they are entitled to call for its exercise, the powerought to be exercised to effectuate the purpose for which itwas given. Though the word ‘may’ appears to be an enablingEword, when the object of the power is to affect a legalright, it must be construed to be mandatory and has itssubstitute as ‘shall’.

The learned single Judge of the Madras High Court inThe MaduraiCity Municipal Corporation, represented by its Commissioner,FMadurai Vs. N. Baskara Panian & Another, 1998 SCC Online Mad75, no doubt, while dealing with the question whether a fresh attachmentis required under Order 21 Rule 46 of CPC when there is an attachmentbefore judgment took the view that the earlier attachment would suffice.

28. In this case, there is no attachment of the debt in the form ofGthe money lying in deposit. The order which is passed is expressly madeunder Order 21 Rule 46A. Certainly, this is not the manner in which anorder could have been passed within the meaning of Order 21 Rule46A. There is a definite scheme as already noticed which is clear fromthe perusal of Order 21 Rule 46 and by the subsequent additions to thelaw by the amendment of the year 1976 which is contained in Order 21H

Rule 46A to Order 21 Rule 46I. It would unerringly point to the provisionsbeing mandatory. Therefore, the High Court appears to be right in itsfinding that the Execution Court should have first attached the debt underOrder 21 Rule 46 before proceeding to pass the order under Order 21Rule 46A of CPC.

29. In this case, we must further bear in mind that the guarantor(the mother of the Patel Brothers) is not the garnishee even accordingto the appellant. In fact, we are unable to think of as to how the motherof the Patel brothers could be said to owe any money to her sons. Atleast nothing has been pressed before us to indicate how the mothercould be the garnishee.

30. The contention, however, raised by the appellant is that it isnot the mother and in fact the appellant was also aware that the motherwas not alive as of the date of the making of the application and thereforethere could not have been any order against the mother. The argumentis that after the auction, the amount in excess of the judgment debt in theother suit come in, to the account of the Court and the Officer of theCourt therefore became the debtor or it is the Officer would be thegarnishee. We have our reservations about accepting this line of argument.Order 21 Rule 46 contemplates, inter alia, a debt. It is difficult to putthe Nazir in the position of a debtor. We cannot understand the relationshipbetween the Nazir in the facts of this case and judgment debtors in theother case is one of debtor and creditor respectively. Therefore, wewould 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 isorder dated 03.02.2007 passed by the Execution Court. The said orderdirected the distribution of the amount fetched in the Court auction in thefollowing manner:- Rs.18,56, 750/- was to be paid to the appellant onaccount 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 presentcase. Further Rs.6,89,416/- was also to be paid to another brother ofthe Patel brothers who was a partner in the firm which was the defendantin the other suit. The position therefore, which we have before us is theamount representing the share of the excess amount lies in the Courtdeposit i.e. the aggregate of Rs.6,89,416/- due to Nikhil BalkrushnaPatel and Rs.6,89,416/- to Ravindra Balkrushna Patel. We are not A

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Acertain as to what has happened to the amount of Rs.6,89,416/- whichis earmarked as share of Hemant Balkrushna Patel. HemantBalkrushna Patel is not a party to the present litigation.

32. Even proceeding on the basis of the flaw which existed in theapplication filed under Order 21 Rule 46A and furthermore the procedureBfollowed by the Court first in not attaching the fund under Order 21 Rule46, the question would arise as to whether the complaint with which webegan in the judgment namely the woes of the decree holder must receivesome redress. The award is passed as we notice in the year 1988nearly 34 years ago. The amount in deposit upon the death of the motherof the Patel brothers would naturally belong to her legal heirs. We posedCthe question to the learned counsel for the respondents as to whetherapart from the three Patel brothers whether there is any other legal heir.The learned counsel for the respondents would submit that there is noother legal heir available. We asked the learned counsel for therespondents whether he has a case that the mother has left behind aDWill. 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. ThePatel brothers would indeed be the Class-I heirs being the sons. Wemust notice in this regard that there is no case for the respondents thatthe order dated 03.02.2007, which is passed with them on the partyEarray 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 bythe subsequent order dated 03.02.2007 to be appropriated to the twoPatel brothers involved in this case before us and to the other brother. Atthis juncture, we may notice Order 21 Rule 52 again. It is in fact relied Fupon by none other than the learned counsel for the respondents. Wewould think that in the facts of this case, it would be appropriate andproper to proceed on the basis that the procedure under Order 21 Rule52 ought to have been followed. In the facts, we would, therefore, feelthat it is appropriate and just to hold as follows: - The second execution petition is maintainable. The filing of the second execution petition wasGnot illegal for the reason that there was no order under Section 39 ofCPC. The filing of the application under Order 21 Rule 46A and theorder passed as such by the Execution Court may be flawed.

In the facts of this case, the more appropriate order would havebeen one under Order 21 Rule 52 of CPC. The amount is lying inH

deposit with the same Court in which the appellant has moved the secondapplication for execution. We therefore, direct that the order passed bythe Execution Court must be treated as an order by which the attachmenthas been made under Order 21 Rule 52 of CPC. By order dated08.08.2022, this Court had permitted the respondents to withdraw theamount lying in deposit in excess of Rs.12 lakhs. It would thus be opento the appellant to proceed against the said amount, to the extent ofRs.12 lakhs. The order will be treated as an order of attachment. Wemust bear in mind also the fact that this Court was persuaded to pass anorder under which the amount lying in deposit in excess of Rs.12 lakhswas allowed to be withdrawn by the respondents. No doubt, this is onthe basis that even accepting the liability of respondents the amountlying in excess of Rs. 12 Lakhs should be made available to therespondents. The Execution Court, namely, 4th Additional Senior CivilJudge (Ahmedabad Rural) will therefore proceed with the matter inaccordance with law. However, we make it clear that the respondents-Patel brothers had an opportunity to raise objections before the ExecutionCourt and the right which is given under Order 21 Rule 46C is for thebenefit of the garnishee. It is nobody’s case that the respondents-Patelbrothers are the garnishees.

33. The Execution Court will however look into the complaint ofthe respondents that the appellant has not properly accounted withreference to the directions given by the Arbitrator regarding theadjustment to be done of the amount which would be due to therespondents under an award obtained by them. We leave it open to theExecution Court to undertake the said exercise and it is for the ExecutionCourt to finally decide the exact amount which is to be made available tothe appellant.

The appeals are allowed in the above fashion and the impugnedorder will stand set aside.

Parties will bear their respective costs.

Pending application(s), if any, stand disposed of.

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

Appeals allowed.

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