M/S. CENTURY TEXTILES INDUSTRIES LTD.versusDEEPAK JAIN & ANR.

                          [2009] 4 S.C.R. 750


A          M/S. CENTURY TEXTILES INDUSTRIES LTD.                            •
                                   v
                        DEEPAK JAIN & ANR.
                   Civil Appeal No. 1743 of 2009
                          MARCH 20, 2009
B
         [D.K. JAIN AND R.M. LODHA, JJ.]
           Code of Civil Procedure, 1908 - ss. 4 7 and 152 - Scope
                                                                        ~
    of - Identity of the proprietor of judgment-debtor Company
    disputed - High Court in revision directing the execution court
c   to determine the question of identity - Execution court
    accordingly determining the identity - Order questioned in
    revision - High court holding that execution court, in exercise
    of jurisdiction uls. 47 could not have gone into the question of
    identity, without seeking amendment of decree uls. 152 - On
D   appeal, held: The question of identity having being adjudicated
                                                                        •
    on the direction of High Court, cannot be said to be without
    ;urisdiction - On facts, the issue could have been adjudicated
    uls. 47 - Scope of s. 152 being limited only to clerical and to
    arithmetical errors, rectification thereunder could not have
    been taken recourse to - s. 152 is based on the principles of
E
    the maxim actus curiae neminem gravabit - The proprietor of
                                                                                   ,-
    the judgment-debtor company took the frivolous plea of



F
    identification at execution stage to obstruct judicial process -
    Single Judge by re-examining the question decided by the
    other Single Judge of High Court and by not referring the matter
    to larger Bench, departed from the norms of judicial decorum
                                                                             ...
                                                                                   -
    - Maxim - actus curiae neminem gravabit - Judicial Propriety
    - Administration of Justice - Misuse of judicial process by
    litigant.

G        A decree was passed against respondent No. 2                  • ,
    (decree-holder) in a recovery suit filed by the appellant.
    At the stage of execution proceedings, when summons
    were issued to respondent No. 1, he filed objection stating                 r
    that he was not the proprietor of respondent No. 2 and
H                                 750
              MIS. CENTURY TEXTILES INDUSTRIES LTD. V.           751
                         DEEPAK JAIN & ANR.

     •   hence not liable to honour the decree. Executing court A
         allowed the objection and held that decree could not be
         executed against respondent No.1. In the revision against
         the order, High Court directed the execution court to hold
         an enquiry regarding the identity of the proprietor of
         respondent No.2 and then decide the matter. The order B
         was not challenged.
              Execution court, as per direction of the High Court,
         after leading evidence, concluded that respondent No. 1
         was the proprietor of respondent No.2. When the order
         was challenged in Revision, High Court held that C
         executing court could not have decided the issue
.,       regarding identity of the proprietor, in exercise of its
         jurisdiction u/s. 47 CPC, by going behind the pleadings
         and judgment in suit and that the decree could not have
         been executed against respondent No. 1 without seeking D
         amendment u/s.152 CPC. Hence the present appeal.
              Allowing the appeal, the Court
                HELD: 1.1 When a specific issue regarding the
         identity of the judgment-debtor had been raised and E
         entertained by the High Court in the first Civil Revision
         Petition, and the court having remitted the matter to the
         executing court, the enquiry conducted by the execution
         court in furtherance of the said direction, its order could
         not be said to be without jurisdiction. In the instant case, F
         the execution 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 Execution
         court to determine the issue could or was raised. It is also G
         manifest that the said direction by the High Court was
         keeping in view the provisions of Section 47 CPC. [Paras
         13 and 14] [ 759-A-C]
               1.2 Section 47 CPC contemplates that all questions
         arising between the parties to the suit in which the decree H
    752     SUPREME COURT REPORTS                  [2009] 4 S.C.R.


A   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 the first instance, was whether
B   the decree against respondent No. 2 could be executed
    against respondent No. 1, who according to the decree-
    holder, was no one else but the proprietor of respondent
    No. 2. It is true that respondent No. 1 as such, was not a
    party to the suit but the fact remains that proprietor of
c   respondent No. 2 was respondent No. 1 himself and,
    therefore, the question referred to the Execution court by
    the High Court for determination was whether proprietor
    of respondent No. 2 and respondent No. 1 were two
    different entities. In the peculiar situation, arising in the
    case, the said issue could be adjudicated u/s. 47 CPC,
D
    notwithstanding the fact that respondent No. 1 was not a
    party in the suit, wherein the decree in question was
    passed. It is also evident from the order of the Execution
    Court that no plea regarding the applicability of Section
    47 CPC was raised on behalf of the judgment-debtor
E   before that Court. [Paras 15 and 16] [759-D-H; 760-A]
         Topanmal Chhotamal vs. Mis. Kundomal Gangaram and
    Ors. AIR 1960 SC 388; Jai Narain Ram Lundia vs. Kedar Nath         •   ~


    Khetan and Ors. AIR 1956 SC 359; Ravinder Kaur vs. Ashok
F   Kumar and Anr. 2003 (8) SCC 289 - referred to.
         2. High Court was not right in holding that the only
    course available to the decree-holder was to seek
    amendment of the decree u/s. 152 CPC. A bare reading of
    Section 152 CPC makes it clear that the power of the court
G   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
H   of court shall prejudice no man. The issue requiring
         M/S. CENTURY TEXTILES INDUSTRIES LTD. V.          753
                    DEEPAK JAIN & ANR

    adjudication by the execution court did not call for and A
    was clearly beyond the scope of Section 152 CPC. [Para
    16] [760-8-D]
         3. Present 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 B
    an advocate. In the first instance, neither the proprietor of
    respondent No. 2 nor respondent No. 1 challenged the
    ex-parte decree and it was only when execution
    proceedings were initiated against respondent No. 1, that
    to obstruct execution, he raised a frivolous plea of the c
    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. [Para 18] [ 760-G-H; 762-A-B]
         4. While dealing with the second Revision Petition, D
    the High Court failed to take into consideration the earlier
    order passed by Single Judge of High Court, whereby the
    execution court was directed to conduct inquiry in regard
    to the status of the objector to the execution proceedings.
    Judicial propriety and decorum requires that if a Single E
    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. In the present
    case, the Single Judge departed from the said healthy
    principle and chose to re-examine the same question F
    himself. [Para 17] [ 760-E-G]
                        Case Law Reference
        AIR 1960 SC 388         Referred to.     Para 10
                                                                 G
        AIR 1956 SC 359         Referred to.     Para 10
        2003 (8) sec 289        Referred to.     Para 10
         CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1743
    of 2009
                                                                 H
    "154      SUPREME COURT REPORTS                  [2009] 4 S.C.R.
                                                                            -
A        From the Judgement and Order dated 18.11.2004 of the
    Hon'ble High Court of Madhya Pradesh at Jabalpur, in Civil
    Revision No. 364 of 2004.

        Sunil Gupta Sanjay Grover, Rajesh Kumar, for the
    Appellants.
B
           Shiv Sagar Tiwari, for the Respondents.

           The Judgement of the Court was delivered by
                                                                        \

           D.K. JAIN, J.
c          Leave granted.

          2. Challenge in this appeal is to the judgment and order
              1
    dated 18 h November, 2004 rendered by a learned Single Judge
    of the High Court of Madhya Pradesh at Jabalpur, in Civil
D   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
E   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
F   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
G   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
H
      M/S. CENTURY TEXTILES INDUSTRIES LTD. V.               755
            DEEPAK JAIN & ANR. [D.K. JAIN, J.)

operated under the name and style of "M/s Surya Trading A
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,
but after sometime, Deepak Jain started dealing with them as
"M/s. Surya Trading Company, Proprietor, D.K. Jain" as well. B
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
                         nc
Rs.10,68,335/- dated 2 August, 1992 from Account No. 453
of"Surya Trading Company" as D.K. Jain. However, the Cheque C
was returned unpaid. The appellant filed a Civil Suit for recovery
of the said amount against "M/s Surya Trading Company,
                                                                 111
Proprietor D.K. Jain''. The Suit was decreed ex-parte on 10
March, 1997. On summons being issued by the Executing Court,
Deepak Jain appeared before the Court and filed objections, D
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 preferred by Deepak Jain, by
order dated 14th August, 2001, the Executing Court held that
the decree could be executed only against D.K. Jain and not E
against Deepak Jain. Aggrieved by the order passed by the
executing Court, the appellant filed a Civil Revision before the
High Court. Vide order dated 21st August, 2002, the High Court
disposed of the Revision Petition with the following direction:
     "After hearing the learned counsel for the petitioner, this F
     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."                           G
       5. None of the parties questioned the said order and thus
it attained finality. On 2nd December, 2002, the appellant moved
an application before the Executing Court disclosing and
specifying the identity of the judgment debtor. The first H
    756        SUPREME COURT REPORTS                    [2009] 4 S.C.R


A   respondent-Deepak Jain contested the said application by
    stating that he was not the proprietor of Mis Surya Trading
    Company and that he had no connection with 744 Sara fa Bazaar
    as well. The Executing Court framed the following issues:
          1.    Whether the objector Deepak Jain, Advocate SIO
B               Late Shri Sumer Chandra, Advocate, RIO 744,
                Saraffa Bazar, Kamaina Road, Jabalpur is the
                proprietor of Mis. Surya Trading Company?

          2.    Relief and expenses.
C        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 Mis. Surya
    Trading Company and Deepak Jain and D.K. Jain are the same
    person. For the sake of ready reference, the relevant portion of
D   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 Mis. Manikgarh Cement,
E         Nagpur. The contents of the letter was related to sending
          cement and in place of account, Mis. Surya Trading
          Company has been written. It has not been clarified by the          .
          Objector that when he has no concern with Mis. Surya
          Trading Company, then on what basis name of Mis. Surya
F         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 Mis. Surya
          Trading Company is being managed by Deepak Jain
          himself. Because as per statement of Objector as per
G         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 Mis. Surya Trading
          Company. Thus it is evident from the letter, Exh. P-4 that
          owner of Mis. Deepak Jain and proprietor of Mis. Surya
H         Trading Company Shri D.K. Jain are the same person."
              M/S. CENTURY TEXTILES INDUSTRIES LTD. V                 757 .
                   DEEPAK JAIN & ANR. [D.K. JAIN, J.]
              7. Obviously, being aggrieved by the said order, Deepak A
        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, there
        was no challenge to the jurisdiction or power of the Executing
        Court to decide the issues framed.                             B
             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, C
        wherein the case of the appellant related to the transaction with
        "Mis. 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 0
    •   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 E
        Judge, the appellant is before us in this appeal, by special leave.

-              10. Mr. Sun ii 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
        earlier order dated 21st August, 2002 in Civil Revision No. 379 F
        of 2002 (extracted above), whereby the Executing Court had
        been directed to hold an inquiry into the question of identity of
        the proprietor of Mis. 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 G
        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
                                                                            H
    758            SUPREME COURT REPORTS               [2009] 4 S.C.R.


A   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, dated 21st August, 2002, which had attained finality,
B   learned counsel placed reliance on the decisions of this Court
    in Topanmal Chhotamaf Vs. Mis. Kundomal Gangaram &
           1                                                             2
    Ors. ; Jai Narain Ram Lundia Vs. Kedar Nath Khetan & Ors.
                                              3
    and Ravinder Kaur Vs. Ashok Kumar & Anr.
           11. Per contra, Mr. Shiv Sagar Tiwari, learned counsel
c   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
D
    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.
E
           12. Having bestowed our anxious consideration to the
    background facts obtaining in the present case, in particular,



F
    the order passed by the High Court on 21st 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
G   to its tenor; has no jurisdiction to widen its scope and is required
    to execute the decree as made. However, the question which
    1
        AIR 1960 SC 388
    2 AIR 1956 SC 359

H
    3
        (2003J 8   sec 289
          MIS. CENTURY TEXTILES INDUSTRIES LTD. V.                  759
                DEEPAK JAIN & ANR. [D.K. JAIN, J.]

    falls for consideration in the present case is that when a specific A
    issue regarding the identity of the judgment-debtor had been
    raised and entertained by the High Court in the first Civil Revision
    Petition, decided on 21st 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 B
    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 C
    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.
                                                                          D
           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 E
    the instant case, the controversy before the High Court, in 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 F
    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 G
    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.
                                                                          H
    760      SUPREME COURT REPORTS                    [2009] 4 S.C.R.


A         16. Moreover, it is evident from the order of the Executing
    Court that no plea regarding the applicability of Section 4 7 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
B   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
    clear that the power of the Court under the said provision is
    limited to rectification of clerical and arithmetical errors arising
C   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
D   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
E          1
    on 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
F
    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.
G
          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
H   instance, neither "D.K. Jain" nor "Deepak Jain", actually one
     MIS. CENTURY TEXTILES INDUSTRIES LTD. V.                761
           DEEPAK JAIN & ANR. [D.K. JAIN, J.]

and the same person, challenged the ex-parte decree dated A
10th 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 B
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/-.

K.K.T.                                         Appeal allowed.