2010 Supreme(Bom) 748

2010(4) ALL MR 867
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJIBENCH)
N. A. BRITTO, J.
Dr. Rekha Kamat Tarcar – Appellant
Versus
M/s. Natt Steel Equipments Ltd. & Anr. – Respondents
Writ Petition No.623 of 2008
Decided on : 10th June, 2010.

Headnote:Civil Procedure Code, 1908 - Order XXIX, Rule 2 - Deletion of name from cause title of execution proceedings - Special civil suit decreed against respondent-2, company - Trial Court in criminal cause filed by respondent-1 against respondent-2 and its M.D. attached certain properties of respondent-2 - Petitioner accepted custody of properties - Respondent-1, decree holder filed execution application, sought detention of Director-petitioner of Company-respondent-2 - Petitioner contends, no decree passed against her - She had resigned and not Director for more than 7 years before passing of decree - Executing Court rejected application of petitioner to delete her name - Challenged - Held - Service on respondent-2 could be effected without name of petitioner being shown in case title as Director of Company - Impugned order not sustainable - Set aside - Name of petitioner directed to be deleted from cause title of execution proceedings - Petition allowed. - Court can even proceed with the assumption that the petitioner continues to be the Director of judgment debtor company, whose name has now been changed to I.F.G. Ltd. by virtue of certificate of incorporation dated 26.2.2001 given by Registrar of Companies Court is entirely in agreement with other sub-missions made by the learned Counsel on behalf of the petitioner. The company was the judgment debtor and the execution had to proceed as per cause title in the suit in the absence of any changed circumstances like transfer of the decree or the like. Court is unable to accept the submission that this petition is rendered infructuous upon the deletion of respondent No. 2, company. All that the petitioner seeks is that her name is to be deleted from the cause title of the execution proceedings and it is the Decree Holder who would be concerned about it, not the judgment debtor/respondent No. 2. Court has perused the decision in a case of Ram Chand and Sons Sugar Mills Private Limited, Barabanki v. Kanhayalal Bhargava (supra) which has no application to the facts of the case at all. As already seen, the respondent No. 2/Decree Holder sought assistance of the Court in executing the money decree by detention in civil prison of the Director of the judgment debtor or by the attachment or sale of its property, or by both. In other words, it is very clear that the petitioner was forced to represent the judgment debtor company in order to pressurize her in complying with the decree. The stand now taken by the Decree Holder is not at all convincing.

       The service on respondent No. 2, the judgment debtor company could have been effected without the name of the petitioner being shown in the cause title as the Director of the Company. If the decree was obtained against the company represented by its Managing Director, there was no reason why the execution proceedings ought to have been filed against the company represented by the petitioner. The provisions of Order XXIX, Rule 2 are only enabling provisions to enable to serve the company through the persons mentioned in Clause (a) or the place mentioned in Clause (b). The said provisions do not give an option to the plaintiff or a Decree Holder that the company should be served through a particular Director or that the company should be represented by a particular Director of his or her choice. As already stated, it appears that the name of the petitioner was added with a view to coerce her to satisfy the decree which was passed against the company. In Court’s view, considering the facts of the case, learned Executing Court ought to have allowed her application and deleted her name from the cause title of the execution proceedings.

       Consequently, the writ petition deserves to succeed. The impugned order dated 25.7.2008 is hereby set aside and, consequently, the name of the petitioner shall be deleted from the cause title of the execution proceedings Rule made absolute on the above terms with no order as to costs.

       Constitution of India - Article 226 - Writ petition - Challenging order dated 25.7.2008 of Executing Court rejecting application of petitioner to delete her name from execution proceedings - Contention - Petitioner not a party to suit - Not concerned with decree passed against company - Petitioner, a Technical Director, resigned from Company-respondent-2 on 13.6.2001 - Held -Company was judgment-debtor - Execution had to proceed as per cause title in suit - Executing Court ought to have allowed application of petitioner - Impugned order set aside - Name of petitioner shall be deleted from cause title of execution proceedings - Petition allowed.