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

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,

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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

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

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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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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

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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

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

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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

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

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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

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,

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MARCH 20, 2009.

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