Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1743 OF 2009
(Arising out of S.L.P. (C) No. 6696 of 2005)
M/S CENTURY TEXTILES INDUSTRIES
LTD.
— APPELLANT (S)
VERSUS
DEEPAK JAIN & ANR. — RESPONDENT (S)
J U D G M E N T
D.K. JAIN, J.:
Leave granted.
2. Challenge in this appeal is to the judgment and order dated
th
18 November, 2004 rendered by a learned Single Judge of
the High Court of Madhya Pradesh at Jabalpur, in Civil
Revision No. 364 of 2004 filed under Section 115 of the Code
of Civil Procedure, 1908 (for short ‘the CPC’). By the
impugned judgment, the learned Judge allowing the Revision
Petition has set aside the order passed by the Second
Additional District Judge, Jabalpur in Execution Case No. 2 of
2004, whereby and whereunder he had held that the objector
Deepak Jain and D.K. Jain are the same person and
proprietor of M/s Surya Trading Company—the judgment
debtor.
3. Shorn of unnecessary details, the case of the appellant, in
brief, is that it is engaged in the business of manufacture of
cement. It required the services of Clearing and Forwarding
Agents. Respondent No.1, namely, Deepak Jain applied for
the said agency in the name of a proprietary concern ‘M/s.
Deepak Jain’ at 743, Sarafa Bazaar. In the application, he
gave the reference of his father Shri S.C. Jain, Advocate,
744, Sarafa Bazaar. Both the properties, namely, 743 and
744 at Sarafa Bazaar are stated to be ancestral properties of
Deepak Jain/D.K. Jain. The said respondent operated a Bank
Account No. 454 with Punjab & Sind Bank for his dealings.
He also had another account No. 453 with the same branch
of the bank operated under the name and style of “M/s Surya
Trading Company, Proprietor, D.K. Jain”, respondent No.2 in
this appeal.
4. According to the appellant, though the agency was in the
name of a proprietary concern, styled as M/s. Deepak Jain,
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but after sometime, Deepak Jain started dealing with them as
“M/s. Surya Trading Company, Proprietor, D.K. Jain” as well.
He corresponded from both the addresses, namely, 743 and
744, Sarafa Bazaar. In discharge of his liability towards the
appellant, the first respondent issued a Cheque in the sum of
nd
Rs.10,68,335/- dated 2 August, 1992 from Account No. 453
of “Surya Trading Company” as D.K. Jain. However, the
Cheque was returned unpaid. The appellant filed a Civil Suit
for recovery of the said amount against “M/s Surya Trading
Company, Proprietor D.K. Jain”. The Suit was decreed ex-
th
parte on 10 March, 1997. On summons being issued by the
Executing Court, Deepak Jain appeared before the Court and
filed objections, pleading that he was neither D.K. Jain nor
proprietor of M/s. Surya Trading Company and not even a
resident of 744, Sarafa Bazaar. Accepting the objections
th
preferred by Deepak Jain, by order dated 14 August, 2001,
the Executing Court held that the decree could be executed
only against D.K. Jain and not against Deepak Jain.
Aggrieved by the order passed by the executing Court, the
appellant filed a Civil Revision before the High Court. Vide
st
order dated 21 August, 2002, the High Court disposed of the
Revision Petition with the following direction:
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“After hearing the learned counsel for the
petitioner, this Revision is disposed of with the
direction that in case petitioner files an appropriate
application disclosing and specifying the identity of
the proprietor, an enquiry thereon shall be held by
the Executing Court and the same shall be
decided in accordance with law.”
5. None of the parties questioned the said order and thus it
nd
attained finality. On 2 December, 2002, the appellant moved
an application before the Executing Court disclosing and
specifying the identity of the judgment debtor. The first
respondent—Deepak Jain contested the said application by
stating that he was not the proprietor of M/s. Surya Trading
Company and that he had no connection with 744 Sarafa
Bazaar as well. The Executing Court framed the following
issues:
1. Whether the objector Deepak Jain, Advocate S/O
Late Shri Sumer Chandra, Advocate, R/O 744,
Saraffa Bazar, Kamaina Road, Jabalpur is the
proprietor of M/s. Surya Trading Company?
2. Relief and expenses.
6. Parties led evidence on the first issue. The Executing Court,
upon analysis of the evidence so led, came to the conclusion
that Deepak Jain was the proprietor of M/s. Surya Trading
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Company and Deepak Jain and D.K. Jain are the same
person. For the sake of ready reference, the relevant portion
of the order passed by the Executing Court is extracted
below:
“It appears from the perusal of the letter, Exh. P-4
that above letter has been written on the Letter
Head in the name of Deepak Jain, 743, Saraffa
Bazar, Kamania Gate. The letter has been
addressed to M/s. Manikgarh Cement, Nagpur.
The contents of the letter was related to sending
cement and in place of account, M/s. Surya
Trading Company has been written. It has not
been clarified by the Objector that when he has
no concern with M/s. Surya Trading Company,
then on what basis name of M/s. Surya Trading
Company has been mentioned on the letter, Exh.
P-4 dated 2.11.1990? Thus, it is evident from the
letter verified by the Objector himself that
business of M/s. Surya Trading Company is being
managed by Deepak Jain himself. Because as
per statement of Objector as per letter, Exh. P-4,
it is his Firm and writer of this letter on the Letter
Head, is no one other than Deepak Jain himself.
In this letter, demand has been given for M/s.
Surya Trading Company. Thus it is evident from
the letter, Exh. P-4 that owner of M/s. Deepak
Jain and proprietor of M/s. Surya Trading
Company Shri D.K. Jain are the same person.”
7. Obviously, being aggrieved by the said order, Deepak Jain
filed Civil Revision No. 364 of 2004. The main ground of
challenge was that the Executing Court had wrongly placed
the onus on him to prove that he was not D.K. Jain. However,
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there was no challenge to the jurisdiction or power of the
Executing Court to decide the issues framed.
8. As noted earlier, by the impugned order, the High Court has
come to the conclusion that the Executing Court could not
decide issue No.1 in exercise of its jurisdiction under Section
47 of the CPC. It has been held that the Executing Court
could not go behind the pleadings and the judgment in the
Civil Suit, wherein the case of the appellant related to the
transaction with “M/s. Surya Trading Company proprietor
D.K. Jain” and there was no reference of objector Deepak
Jain, S/o late Sumer Chandra Jain, Advocate, 743 Sarafa
Bazaar, Jabalpur in the judgment of the Civil Court. It has
been observed that without seeking amendment under
Section 152 of the CPC of the judgment-decree, the
appellant was erroneously endeavouring to execute the
money decree against Deepak Jain.
9. Being aggrieved by the decision of the learned Single Judge,
the appellant is before us in this appeal, by special leave.
10. Mr. Sunil Gupta, learned senior counsel appearing on behalf
of the appellant, strenuously urged before us that by the
impugned order, the High Court has in effect overturned its
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st
earlier order dated 21 August, 2002 in Civil Revision No. 379
of 2002 (extracted above), whereby the Executing Court had
been directed to hold an inquiry into the question of identity of
the proprietor of M/s. Surya Trading Company. It was
submitted that the High Court failed to appreciate that its own
earlier order mandated the Executing Court to determine the
identity of the proprietor of the judgment debtor and,
therefore, the Executing Court was certainly competent and
entitled to go into the said question in terms of Section 47,
CPC. It was also contended that adjudication on the question
of identity being a pure question of fact, it could not be
interfered by the High Court in exercise of its jurisdiction
under Section 115, CPC. In support of the proposition that
the High Court should have taken into consideration the
decision of the Co-ordinate Bench of the same High Court,
st
dated 21 August, 2002, which had attained finality, learned
counsel placed reliance on the decisions of this Court in
Topanmal Chhotamal Vs. M/s. Kundomal Gangaram &
1
Ors. ; Jai Narain Ram Lundia Vs. Kedar Nath Khetan &
2 3
Ors. and Ravinder Kaur Vs. Ashok Kumar & Anr. .
1
AIR 1960 SC 388
2
AIR 1956 SC 359
3
(2003) 8 SCC 289
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11. Per contra, Mr. Shiv Sagar Tiwari, learned counsel appearing
on behalf of the respondents, supported the impugned
judgment and submitted that the Executing Court had
misread the evidence while coming to the conclusion that
Deepak Jain and D.K. Jain are one and the same person and
proprietor of M/s. Surya Trading Company. Learned counsel
submitted that the High Court was justified in holding that the
Executing Court could not go behind the decree and that the
only remedy available to the appellant herein was to seek
rectification of the decree by moving proper application under
Section 152 of the CPC.
12. Having bestowed our anxious consideration to the background
facts obtaining in the present case, in particular, the order
st
passed by the High Court on 21 August, 2002, in the first
round of litigation in execution proceedings, subject matter of
Civil Revision No. 379 of 2002, in our opinion, the impugned
judgment is unsustainable.
13. There is no quarrel with the general principle of law and
indeed, it is unexceptionable that a court executing a decree
cannot go behind the decree; it must take the decree
according to its tenor; has no jurisdiction to widen its scope
and is required to execute the decree as made. However, the
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question which falls for consideration in the present case is
that when a specific issue regarding the identity of the
judgment-debtor had been raised and entertained by the High
st
Court in the first Civil Revision Petition, decided on 21
August, 2002, and the Court having remitted the matter to the
Executing Court, the enquiry conducted by the Executing
Court in furtherance of the said direction, could its order be
said to be without jurisdiction?
14. In our opinion, on facts in hand, the Executing Court had no
option but to determine the question of identity of the
judgment-debtor because of the direction of the High Court
and the issues raised before it. Indeed, no objection to the
jurisdiction of the Executing Court to determine the issue
could or was raised. It is also manifest that the said direction
by the High Court was keeping in view the provisions of
Section 47 of the CPC.
15. Section 47 of the CPC contemplates that all questions arising
between the parties to the suit in which the decree was
passed, or their representatives, and relating to the execution,
discharge or satisfaction of decree, have got to be determined
by the court executing the decree and not by a separate suit.
In the instant case, the controversy before the High Court, in
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the first instance, was whether the decree against “M/s Surya
Trading, Proprietor, D.K. Jain” could be executed against
Deepak Jain, who according to the decree holder, was no one
else but D.K. Jain. It is true that Deepak Jain, as such, was
not a party to the suit but the fact remains that “M/s Surya
Trading Company, Proprietor, D.K. Jain” was Deepak Jain
himself and, therefore, the question referred to the Executing
Court by the High Court for determination was whether “D.K.
Jain” and “Deepak Jain” were two different entities. We have
no hesitation in holding that in the peculiar situation arising in
the case, the said issue could be adjudicated under Section
47 of the CPC, notwithstanding the fact that Deepak Jain was
not a party in the suit, wherein the decree in question was
passed.
16. Moreover, it is evident from the order of the Executing Court
that no plea regarding the applicability of Section 47 of the
CPC was raised on behalf of the judgment-debtor before that
Court. We are unable to persuade ourselves to agree with the
High Court that the only course available to the decree holder
was to seek amendment of the decree under Section 152 of
the CPC, as was canvassed before us by learned counsel for
the respondents. A bare reading of Section 152 CPC makes it
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clear that the power of the Court under the said provision is
limited to rectification of clerical and arithmetical errors arising
from any accidental slip or omission. There cannot be re-
consideration of the merits of the matter and the sole object of
the provision is based on the maxim actus curiae neminem
gravabit i.e., an act of court shall prejudice no man. In our
judgment, the issue requiring adjudication by the Executing
Court did not call for and was clearly beyond the scope of
Section 152 CPC.
17. We are also constrained to observe that while dealing with the
second Revision Petition, the High Court failed to take into
consideration the order passed by a learned Single Judge on
st
21 August, 2002, whereby the Executing Court was directed
to conduct inquiry in regard to the status of the objector to the
execution proceedings. Time and again it has been
emphasised that judicial propriety and decorum requires that if
a Single Judge, hearing a matter, feels that earlier decision of
a Single Judge needs re-consideration, he should not embark
upon that enquiry, sitting as a Single Judge, but should refer
the matter to a larger Bench. Regrettably, in the present case,
the learned Single Judge departed from the said healthy
principle and chose to re-examine the same question himself.
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18. Before parting, we note with some anguish that this case is a
classic example of how a judicial process can be misused by
unscrupulous litigants, more so, when the person concerned
himself happens to be an advocate. In the first instance,
neither “D.K. Jain” nor “Deepak Jain”, actually one and the
th
same person, challenged the ex-parte decree dated 10
March, 1997 and it was only when execution proceedings
were initiated against “Deepak Jain”, that to obstruct
execution, he raised a frivolous plea of the identification of the
judgment-debtor, with the result that although over a decade
has gone by yet the decree holder has not been able to enjoy
the fruits of the money decree so far.
19. In view of the foregoing discussion, the appeal is allowed and
the impugned judgment of the High Court is set aside with
costs, quantified at Rs.20,000/-.
………………………………….…J.
( D.K. JAIN )
…………………………………….J.
( R.M. LODHA )
NEW DELHI,
1
MARCH 20, 2009.
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