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TMI Blog1999 (1) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are not personally liable for the decree amount and, hence, their property cannot be sold in auction. The court below, by the impugned order, has held that the suit was filed for getting certain amounts from the first defendant, which is a private limited company. Respondents Nos. 1 and 2, who were defendants Nos. 2 and 3, were only managing director and director respectively. Unless any fraudulent act was pleaded, no personal liability can be tacked on to respondents Nos. 1 and 2. In the above view of the matter, the Court below held that judgment debtors Nos. 2 and 3 cannot be personally proceeded against. It is against that the present C.R.P. is filed. The learned counsel for the petitioner, Shri Chacko George, contended before me tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Hrushikesh Panda v. Indramani Swain [1988] 63 Comp. Cas. 368. In that case, a Division Bench of the Orissa High Court held as follows : "A money decree was passed in a suit against a company and its managing director making both jointly and severally liable. The decree holder applied for attachment of the personal property of the managing director. The executing court disallowed the same. The first appellate court, however, held that the executing court could not go behind the decree. The question before the court in the present case was whether the executing court could construe the decree." Thereafter the court held as follows : "... As there is no general rule for construing decrees, each case must depend upon its own facts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaint are stated. The following allegations are worth noting. The plaintiff has granted the first defendant a temporary overdraft accommo-dation for the purpose of meeting its working capital requirements, firstly on 25-10-1978, and subsequently on several dates thereafter. The second and third defendants are the managing director and director respectively of the first defendant-company. The advances granted to the first defen- dant was on the strength of a specific undertaking/promise made by the defendants to liquidate the entire outstanding in the said account includ- ing costs and expenses within one month. 3. The contention taken by the defendants was that the suit was barred by limitation. Defendants Nos. 2 and 3 are unnecessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable. 6. There is also another factor which stands against the present respon-dents, that is, they filed a petition under sections 151 and 152 of the Code of Civil Procedure, to correct the judgment and decree so as to take away the liability cast on them in the judgment and decree. For this purpose, the respondents had filed LA. No. 1863 of 1986. That was disposed of by order dated 25-8-1990. The court went on to find whether the correction can be allowed. In paragraph 5, the court held as follows : "The contentions of learned counsel for applicants-defendants Nos. 2 and 3 are that the court passed a personal decree against defendants Nos. 2 and 3 by accidental slip or omission. Defendants Nos. 2 and 3 raised a contention in the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Janendra Mohan Bhaduri v. Rabindra Nath Chakravarti AIR 1933 PC 61, the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. The Supreme Court thereafter went on to hold as follows : "This is not a case in which the award decree on the face of it was shown to be without jurisdiction. Even if the decree was passed beyond the period of limitation, it would be an error of law or at the highest a wrong decision which can be corrected in appellate proceedings and not by the executing court which was bound by such decree. In the present case the award decree has become final and that too when the respondent judgment debtor did not think it fit to contest the proceedings and did not contend that no decree could be passed. He cannot now, in execution proceedings, contend that the decree should be ignored as being a nullity". Thus, it could be seen from the decre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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