Mere Dismissal For Default Of First Execution Petition Will Not Preclude Filing Of A Fresh One Provided It Is Within Time : Supreme Court

The Supreme Court observed that mere dismissal of the first execution petition on the ground of default will not preclude decree holder from filing a fresh execution petition provided it is within time. We also find merit in the 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." Case Details Bhagyoday Cooperative Bank Ltd. vs Ravindra Balkrishna Patel | 2022 LiveLaw 1020 | CA 8531-8532 OF 2022 | 16 Nov 2022 | Justices KM Joseph and Hrishikesh Roy Headnotes Code of Civil Procedure, 1908 ; Order XXI Rules 46,46A - Execution Court should have first attached the debt under Order 21 Rule 46 before proceeding to pass the order under Order 21 Rule 46A- Order 21 Rule 46A in the case of debt must be understood as a debt spoken of in Order 21 Rule 46 of CPC and the debt must have been attached under Order 21 Rule 46 - 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 Code of Civil Procedure, 1908 ; Order XXI - 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.