M/S. Century Textiles Industries Ltd vs Deepak Jain & Anr

2. Challenge in this appeal is to the judgment and order dated

18th 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,

2 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

Rs.10,68,335/- dated 2nd 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-

parte on 10th 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

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 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:

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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

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

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

4 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,

5 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

6 earlier order dated 21st 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,

dated 21st August, 2002, which had attained finality, learned

counsel placed reliance on the decisions of this Court in

Topanmal Chhotamal Vs. M/s. Kundomal Gangaram &

Ors.1; Jai Narain Ram Lundia Vs. Kedar Nath Khetan &

Ors.2 and Ravinder Kaur Vs. Ashok Kumar & Anr.3.

1 AIR 1960 SC 388 2 AIR 1956 SC 359 3 (2003) 8 SCC 289 7

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

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 to its tenor; has no jurisdiction to widen its scope

and is required to execute the decree as made. However, the

8 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

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 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

9 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

1 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

21st 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

same person, challenged the ex-parte decree dated 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 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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