2009 Supreme(SC) 519

2009(3) Supreme 93
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
D.K. Jain and R.M. Lodha, JJ.
M/s Century Textiles Industries Ltd. — Appellant
versus
Deepak Jain & Anr. — Respondents
Civil Appeal No. 1743 of 2009
(Arising out of S.L.P. (C) No. 6696 of 2005)
Decided on : 20-03-2009

Advocates appeared :
For the Appellants : Sunil Gupta, Sr. Adv., Sanjay Grover, Rajesh Kumar, Advocates.
For the Respondent : Shiv Sagar Tiwari, Advocate.

Headnote:(a) Code of Civil Procedure, 1908 – Section 47 – A court executing a decree cannot go behind the decree – It must take the decree according to its tenor – It has no jurisdiction to widen its scope and is required to execute the decree as made. (Para 13)

        AIR 1960 SC 388; AIR 1956 SC 359; (2003) 8 SCC 289 – Relied upon.

        (b) Code of Civil Procedure, 1908 – Section 47 – High Court directing the Executing court to determine the identity of judgment-debtor – The Executing court had no option – Hence its jurisdiction could not be questioned. (Para 14)

        (c) Code of Civil Procedure, 1908 – Section 152 – There cannot be re-consideration of the merits of the matter u/s 152 – The issue requiring adjudication by the Executing Court did not call for and was clearly beyond the scope of Section 152 CPC. (Para 16)

        (d) Judicial propriety – 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. (Para 17)

       Facts of the case :

        1. The appellant 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.

        2. 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.

        3. 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.

        4. 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.

        5. 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.

        6. 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.

        7. None of the parties questioned the said order and thus it attained finality.

        8. 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

        9. The Executing Court came to the conclusion that Deepak Jain was the proprietor of M/s. Surya Trading Company and Deepak Jain and D.K. Jain are the same person.

        10. Deepak Jain filed Civil Revision No. 364 of 2004.

        11. By the impugned order, the High Court has come to the conclusion that the Executing Court could not decide the issue in exercise of its jurisdiction under Section 47 of the CPC.

       Finding of the Court :

        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. The impugned judgment is unsustainable.

       Result : Appeal allowed with cost.