M/S. TCI FINANCE LTD. versus CALCUTTA MEDICAL CENTRE LTD. AND ANR.

Citation: [2005] SUPP. 3 S.C.R. 489 · Decided: 26-09-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

MIS. TCI FINANCE LTD. 
A 
11. 
CALCUTTA MEDICAL CENTRE LTD. AND ANR. 
SEPTEMBER 26, 2005 
[ARIJITPASAYAT ANDG.P. MATHUR,JJ.] 
B 
Code of Civil Procedure, 1908-Sections 38, 47 and Order 21Rule54 
and 58-Execution Court-Jurisdiction-Scope of-Suit-Decreed-
Execution Petition-Intervention by tenant-Tenancy disputed-Dismissal of C 
intervention application by Single Judge of High Court-Division Bench of 
High Court directed Execution Court to decide question of tenancy-On 
appeal, held: Division Bench enlarged the scope of the controversrExecution 
Court does not have jurisdiction to go beyond the decree-It cannot decide 
the question of tenancy. 
Suit of the appellant-plaintiff was decreed, against proprietor of 
respondent No. 2 ex-parte. Application for setting aside ex-parte decree was 
set aside. Respondent No. 1 claiming to be tenant of mother of proprietor of 
respondent No. 2 filed intervention application. Appellant disputed the tenancy. 
D 
The application was dismissed by High Court holding that respondent No. I 
could not have any independent right in respect of the properties as she was E 
not the owner of the property. Division Bench of High Court set aside the 
order of Single Judge directing the parties to place their respective stands 
before the Execution Court as regards the claim made by respondent No. tin 
respect of the properties where it claimed to be the tenant. It also observed 
that the matter had assumed the proportion of a full blown suit. Hence the F 
present appeal. 
Allowing the appeals, the Court 
HELD: I. The High Court's order is unsustainable. Respondent No. 1 
claimed its tenancy from the mother of proprietor of respondent No. 2. Her G 
application to be impleaded as party in the present proceedings was rejected. 
At no point of time she had pressed a claim of being the owner of the property. 
The appellant has not accepted that respondent no. 1 was a tenant in respect 
of the attached properties. In any event, the question of tenancy cannot be 
decided by the Execution Court. (493-E( 
4~ 
H 
490 
SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R. 
A 
2. The Executing Court cannot go beyond the decree. It is the settled 
position in law which flows from Section 38 of CPC, except when the decree 
is a nullity or is without jurisdiction. Case of respondent No. 1 is not covered 
by Section 47 or Order 21 Rule 54 or Rule 58 CPC. Without indicating any 
reason as to how reasoning of Single Judge was wrong the Division Bench 
enlarged the scope of the controversy and directed the Execution Court to 
B decide question of tenancy which is legally impermissible. It permitted the 
Execution Court to deal with the matters which are clearly beyond the scope 
of its adjudication. [493-F; 494-B] 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5893-5894 of 
c 2005. 
D 
E 
From the Judgment and Order dated 14.5.2004 of the Calcutta High 
Court in A.P.O.T. No. 479 and 618 of2003. 
M.N. Rao, Mrs .B. Sunita Rao and Sushi! Kr. Pathak for the Appellant. 
Altaf Ahmed, Pijush K. Roy, Satyam Basu, G. Ramakrishna Prasad, Rauf 
Rahim, G.G. Upadhyay, Pankaj Dubey, Rajeev Sharma and R.D. Upadhyay for 
the Respondents. 
The Judgment of the Court was delivered by 
ARIJIT PASAYA T, J. Leave granted. 
Challenge in these appeals is to the judgment rendered by a Division 
Bench of the Calcutta High Court setting aside the order passed by a learned 
Single Judge and directing the parties to place their respective stands before 
F the Execution court as regards the claim made by respondent No. 1 in respect 
of the properties where it claimed to be the tenant. 
Background facts in a nutshell are as follows: 
Appellant filed a suit in the court of IV Additional Chief Judge, City 
G Civil Court, Hyderabad for recovery of Rs. 20,91,319 from respondent 
No. 2 a proprietary concern represented by its proprietor Dr. Ashok Kumar 
Gupta under Order 37 Rules 1 and 2 of the Code of Civil Procedure, 1908 (in 
short the 'CPC') inter alia with the following prayers: 
(a) a decree for Rs. 20,91,319; 
H 
(b) and future interest at the agreed rate of 36% p.a. on the said 
-
TC! FINANCE LTD. 1·. CALCUTT A MEDICAL CENTRE LTD. [PASA Y AT,J.] 
491 
amount from the date of the suit till the date of payment. 
The claim of the plaintiff-appellant, according to it, arose on account 
of non payment of the aforesaid sum which was covered by a demand 
promissory note dated 20.3.1995 executed by aforesaid Dr. Ashok Kumar 
Gupta in favour of the plaintiff
Excerpt shown. Read the full judgment & AI analysis in Lexace.