Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Code of Civil Procedure 1908 |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | 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 u/s. 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 jurisdiction - On facts, the issue could have been adjudicated u/s. 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. 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 hence not liable to honour the decree. Executing court 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 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 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 amendment u/s.152 CPC. Hence the present appeal. |
Judge | Hon'ble Mr. Justice D.K. Jain |
Neutral Citation | 2009 INSC 376 |
Petitioner | M/s. Century Textiles Industries Ltd. |
Respondent | Deepak Jain & Anr. |
SCR | [2009] 4 S.C.R. 750 |
Judgement Date | 2009-03-20 |
Case Number | 1743 |
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