1. Heard learned advocates for the petitioner and respondents 1 and 3. None present for respondents 2 and 4 to 8 though served. Notice was issued to respondents for final disposal of the matter at the admission stage. In spite of the notice being served, respondents 2 and 4 to 8 have remained absent, hence it is to be presumed that they are not interested in contesting the proceedings.
2. Upon hearing learned advocates for the petitioner and respondents 1 and 3 and on perusal of the record it is seen that the suit filed by the plaintiff being S.C Suit No. 264 of 1995 for recovery of amount, stated to have remained unpaid towards the goods sold to the petitioner-defendant, was decreed by decree dated 4-1-2001. Thereafter the plaintiff filed darkhast proceedings being Spl. Darkhast No. 20 of 2001 wherein the petitioner filed application under section 47 of Code of Civil Procedure raising mainly two objections viz. that the decree has been passed in the said suit without service of summons in relation to the suit upon the petitioner and that the summons was served only on the Company which was joined as party-defendant pursuant to the amendment to the cause title and as such the decree has been passed without following even the basic principles of natural justice vis-a-vis the petitioner. It was also submitted that the added defendants were never served with the summons and liability being of a limited company in terms of provisions of the Companies Act, Directors thereof cannot be held to be personally liable for the amount alleged to be due from the Company. The Executing Court after hearing the parties while allowing the contention of the petitioner that there was no service of summons ordered modification of the decree by the impugned order dated 30-6-2001.
3. The decree dated 4-1-2001 was to the effect that the defendant-firm represented by the defendant Nos. 3 to 8 were jointly and severally liable to pay to the plaintiff sum of Rs. 2,87,892.00 along with interest thereon at the rate of 12% per annum from 31-3-1992 until the total realization of the entire decretal amount and that the defendant-firm represented by defendant Nos. 3 to 8 were to pay the proportionate cost to the plaintiff. By order dated 30-6-2001 the said decree was modified in the following manner:
“1. A sentence coming over last 2 lines of page 4 and first line of page 5 in para 9 of the judgment, in Special Civil Suit No. 264/1995 shall be scored out, being written inadvertently by mistake.
2. The word, joint and several appearing in operative order of Judgment and decree, shall be scored out.
3. The order to proceed without W.S of deft as that is recorded by my learned predecessor in order-sheet of 3-12-1997 shall be reproduced below Ex. 1 in Special Civil Suit No. 264/1995 w.e.f first date on which the proceeding was placed before me, i.e 9-6-2000.
4. The ex parte judgment passed in Spl. C.S No. 264/95 shall be set aside if defendant deposited in Court bare suit claim of Rs. 2,67,892/- (Two Lakhs sixty-seven thousand and eight hundred ninety two) within 15 days from the date of this order.
5. Darkhast shall stand dismissed, for fresh trial of the suit Spl. C.S No. 264/95 only on fulfilment of the condition of payment into Court by J.Ds and thereafter on fulfilment of the condition all the ancillary applications in the darkhast shall come to an end.
6. The darkhast shall proceed further for execution on failure of judgment debtor to deposit the amount as above, and thereafter issue warrant of attachment against the J.D under Order 21, Rule 43 for movables and under Order 21, Rule 54 for immovables to proceed further for necessary action towards recovery of suit claim.
7. The parties and Advocates appeared in this darkhast shall enter their appearance in the proceeding of the suit in case that is restored to file, on account of the fulfilment of the condition.
8. Parties to bear their own costs, as to darkhast proceeding.”
4. While assailing impugned order it was sought to be contended on behalf of the petitioner that while considering the Application under section 47 of Civil Procedure Code filed by the petitioner objecting to the execution of the decree on the ground of non service of summons and other grounds taken in the said application, it was not permissible for the Court below to modify the decree and certainly not in the manner in which it has been modified and as such the Court below exceeded its jurisdiction while allowing the application under section 47 and therefore the impugned order to the extent of modifying the decree needs to be set aside while confirming the order relating to opportunity to be given to the petitioner to contest the suit. On the other hand while agreeing with the learned advocate for the petitioner regarding the challenge to the modification of decree, it was sought to be contended on behalf of respondents 1 and 3 that the Court below could not have modified the decree and at the same time could not have set aside the decree and give opportunity to the petitioner to contest the suit.
5. In terms of section 47 of the Code of Civil Procedure undoubtedly all questions arising between the parties to the suit in relation to the execution, discharge or satisfaction of the decree are to be determined by the Court executing the decree. The words “execution or discharge or satisfaction” in section 47 of Civil Procedure Code disclose limits of the scope of inquiry under said section. They reveal that the adjudication in the inquiry under section 47 is limited to the questions of implementation, and fulfilment of obligations under the decree. The issue in such inquiry must relate to the enforcement of the obligations created by the decree and must refer to the matters arising subsequent to the passing of the decree and not to the antecedent to it. It has been well settled by the catena of decisions of the Apex Court as well as of this High Court and other High Courts that the Executing Court is not entitled to go beyond the decree. Bare reading of the impugned order discloses that the Executing Court under the guise of considering the issue regarding execution of the decree had virtually set aside the decree by going beyond the decree and thereby has acted illegally while allowing application under section 47 of the Code of Civil Procedure. The issues like non-service of summons and on that ground the decree being held to be a nullity cannot be considered by Executing Court under section 47 of Code of Civil Procedure. Remedy in such a case lies somewhere else. Apparently therefore the exercise done by the Court below in modifying the decree in the manner it has been modified, as rightly submitted by the learned advocate for the parties, is entirely in excess of jurisdiction of the Executing Court and cannot be sustained.
6. Undoubtedly in terms of section 152 of Civil Procedure Code a clerical or arithmetical mistakes in judgments, orders or decrees arising out of accidental slip or omission can be corrected at any time by the Court either suo motu or on an application made by any of the parties to the suit. However, the decree is silent about some relief, the power either under section 47 or 152 cannot be exercised by the Court. The Apex Court in State of Punjab v. Krishan Dayal Sharma reported in (2011) 11 SCC 212 : AIR 1990 SC 2177 has held that when the decree is silent about interest, that power cannot be exercised by the Executing Court. In the case of Dwaraka Das v. State of M.P reported in 1999 AIR SCW 663 : AIR 1999 SC 1031, it was held that the omission in granting the pendente lite interest could not be held to be accidental omission or mistake and therefore, neither the trial Court nor the Appellate Court has power to award pendente lite interest under section 152 of Civil Procedure Code. Recently in K. Rajamouli v. A.V.K.N Swamy reported in 2001 AIR SCW 2146 the Apex Court has held that power to amend a decree cannot be exercised so as to add to or substract from any relief granted earlier.
7. In the circumstances this Court is left with no alternate but to allow the petition and set aside the impugned order, but at the same time, to dismiss the application filed by the petitioner under section 47 as the adjudication in relation to the grounds alleged in the application is beyond the scope of inquiry under section 47 of Code of Civil Procedure. Needless to say that this may not preclude the petitioner from pursuing with the matter in appropriate proceedings and in accordance with provisions of law.
8. In the result, therefore, Application is allowed. The impugned order is hereby set aside and simultaneously the application filed by the petitioner under section 47 of Code of Civil Procedure in the Darkhast Proceedings No. 20/2001 is dismissed. The petition is disposed of in above terms with no order as to costs.
Application allowed.
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