LexM/S. CENTURY TEXTILES INDUSTRIES LTD. versus DEEPAK JAIN & ANR.
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[2009] 4 S.C.R. 750 A M/S. CENTURY TEXTILES INDUSTRIES LTD. • v DEEPAK JAIN & ANR. Civil Appeal No. 1743 of 2009 B MARCH 20, 2009 [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 E been taken recourse to - s. 152 is based on the principles of ,- the maxim actus curiae neminem gravabit - The proprietor of the judgment-debtor company took the frivolous plea of identification at execution stage to obstruct judicial process - ... Single Judge by re-examining the question decided by the - F 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 r were issued to respondent No. 1, he filed objection stating 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
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