State of U. P. v. Qamar Abbas Abbasi — 1981 DIGILAW 1141 (ALL)

JUDGMENT N.N. Mithal, J. - This is a revision by the State of Uttar Pradesh against an order dated 6-1-1979 passed by the executing court dismissing its objection. 2. The facts relevant for the purposes of this revision are that the Respondent No. 1 had filed Suit No. 82 of 1S69 against Abdul Karim Khan Higher Secondary School, Amroha and its management claiming that the order of termination passed against him on 28-9-1967 was ultra vires illegal null and void, and also claiming arrears of salary etc. He also filed Suit No. 85 of 1972 claiming arrears of salary due for subsequent period upto 31st October, 1970. These two suits were heard together and were decreed on 27-8-1974. The defendants filed appeal but these two were dismissed on 14-4-1975. It appears that the plaintiff Respondent No. made an application before the appellate court seeking amendment in the decree and prayed for grant of additional relief of pendente lite and future salary also. The amendment sought was allowed on 27-8-1975 and the decree stood amended accordingly. 3. During the pendency of the appeal, an execution of the decree was levelled by the plaintiff in which the recovery of the disputed amount was claimed by attachment and sale of certain immoveable properties belonging to the judgment-debtors. In 1971, U.P. Act No. 24 of 1971 was enforced from 1st August, 1971 according to which the State of U.P. undertook to pay salaries of teachers of all the High Schools and Intermediate Colleges in the State. On 24-1-1976 therefore, an application was moved by the decree-holder for directing the District Inspector of Schools to pay the amount due under the decree and on 27-2-1976 the court directed the District Inspector of Schools to make the payment and also to file an objection, if necessary. An objection was filed on 23-7-1976 contending that there was no decree against the District Inspector of Schools or the State of U.P. and, therefore, the decree could not be executed against them. This objection was, however, rejected. On 25-3-1976, the decree-holder applied for attachment of some money lying to the credit of the judgment-debtors in the Syndicate Bank Amroha. The District Inspector of Schools again filed on objection on 24-2-1976 purporting to be under Order 21, Rule 58, CPC against attachment of 'he sum of Rs. 19551 lying in the Bank. This objection was, however, rejected. On 25-3-1976, the decree-holder applied for attachment of some money lying to the credit of the judgment-debtors in the Syndicate Bank Amroha. The District Inspector of Schools again filed on objection on 24-2-1976 purporting to be under Order 21, Rule 58, CPC against attachment of 'he sum of Rs. 19551 lying in the Bank. This objection too was rejected in view of the earlier orders. On 25-4-1977 another objection was filed under Order 11, Rule 58, CPC and this too met the same fate on 4-8-1978. Finally another set of objections was filed by the State on 26-3-1977 and two applications 77-C and 79-C moved by the decree-holder on 30-5-1977 were disposed of by the Executing Court by means of the impugned order, holding that the State of U.P. was liable for payment of money due under the decree under execution. 4. The main point canvassed before me in this revision were that no decree had ever been passed against the State of U.P. and the decree having been passed only against the Manager and the Board of Management of the institution, it could not be executed against the State. It was further urged that U.P. Act No. 24 of 1971 does not ipso facto impose any liability on the State of U.P. which has only assured the payment of salary of teachers of High Schools and Intermediate Colleges in the State and the Court cannot directly execute the decree against it without first impleading the State of U.P. as a party. It is also urged that the execution was sought only against the judgment-debtors named in the decree and when there was no prayer even seeking to execute it against the State of U.P. no process could have been issued by the Court against them in these proceedings. 5. The learned counsel for the State of U.P. firstly, submitted that the view of the Court below, that the provisions of U.P. Act No. 24 of 1971 will apply in the case of decreed arrears of salary also, was erroneous, particularly because the State of U.P. was not a party either to the suit or in the execution proceedings. 5. The learned counsel for the State of U.P. firstly, submitted that the view of the Court below, that the provisions of U.P. Act No. 24 of 1971 will apply in the case of decreed arrears of salary also, was erroneous, particularly because the State of U.P. was not a party either to the suit or in the execution proceedings. His contention was that the provisions of U.P. Act No. 24 of 1971 were designed in such a way that the payment of salary to the teachers and other employees of the High Schools and Intermediate Colleges in U.P. may be paid regularly and without delay. A machinery for ensuring this prompt payment was provided in the Act itself. It was to function under the control of the District Inspector of Schools. There is, however,, according to his submission, no provisions under the Act which would make the State liable even in respect of that amount of salary which has been the subject-matter of litigation between a teacher or employee of a High School or Intermediate College on the one hand and the institution or its management on the other hand. In such cases, liability to pay the arrears of salary, if any, stands fastened to the defendants only and this liability cannot be satisfied to the shoulders of the State of U.P. 6. The submission made by the learned counsel, however, does not appear to be correct. It is true that the object of the Act was to secure regular and prompt payment of salaries to the teachers and employees of the High Schools and Intermediates Colleges in the State and the machinery to regulate the payment has been provided in the Act itself so that this object may be achieved with certain degree of smoothness. However, it cannot be said that the State was not liable in respect of salary of each teachers and employees accruing after 31st March, 1971. With effect from 31st of March, 1971 Section 3 of the Act ordains payment of salary to them by the 20th of next month for which it is payable. Section 10 of the Act, however, provides for the liability of the State Government in respect of the payment of salaries of teachers and employees Section 10 of the Act reads as under : - "Liability in respect of salary". Section 10 of the Act, however, provides for the liability of the State Government in respect of the payment of salaries of teachers and employees Section 10 of the Act reads as under : - "Liability in respect of salary". - (1) The State Government shall be liable for payment of salaries of teachers and employees of every institution due in respect of any period after March 31, 1971. (2) The State Government may recover any amount in respect of which any liability is incurred by it under sub-section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were in arrears of land revenue due from the institution. . (3) Nothing in this section shall be deemed to derogate from the liability of the institution for any such dues to the teachers or employees" The section does not distinguish between the salaries in respect of which a decree has been passed by the court or such salaries about which no such decree had been passed A plain meaning of the section implies that it is the liability of the State Government to pay salaries of the teachers and employees of every institution after 31st March, 1971. Sub-section (2) of Section 10 also clearly points out in the same direction. According to it, if any payment is made by the State Government under sub-clause (1) the same can be recovered from the property of the concerning institution. The provisions of sub-clauses (1) and (2) of Section 10 when read together, would lead to the conclusion that although the primary liability is of the State Government to see that the payment of salaries of teachers and employees is made in accordance with the provisions of the Act, yet the ultimate liability for its payment is of the institution or its management. I have, therefore, no hesitation in rejecting the first submission made on behalf of the State and to hold that the State Government was liable for the payment of the salary in question for a period after 31st March, 1971. In respect of the salary for a period prior to this date, no liability attaches to the State Government and can be recovered only from the assets of the institution or from its management. 7. In respect of the salary for a period prior to this date, no liability attaches to the State Government and can be recovered only from the assets of the institution or from its management. 7. The learned counsel next contended that the issue of process during the execution of the decree against the State of U.P. and the District Inspector of Schools by the Executing Court was totally unjustified because neither any decree had been passed against them nor in the execution application the decree-holder had prayed for any relief against them. In this connection I was taken through the various provisions of Order 21, Rule 11, CPC. It deals with the manner in which an execution can be started and also deals with the particulars which ought to be mentioned in the written application for execution. Clause (2) (b) requires enunciation of the names of parties to the decree while clause (1) requires mention of the names of such person or persons against whom execution of the decree is sought. This provision makes it clear that before an execution can be started against a particular person, this fact and the name of such person must be mentioned in the application for execution in order to indicate that particular person is sought to be made liable under the decree under execution. Clause (2) (b) requires mention of the names of the parties against whom the decree has been granted by the court but clause (1) requires names of the particular person to be mentioned against whom execution of the decree is actually sought. This is so because before setting into motion the machinery of the Executing Court it must know as to how and in what manner that particular person was liable under the decree, even though he may do be a judgment-debtor. It must also know whether the Executing Court should issue any process against him, in the manner prayed for by the decree-holder. Normally execution is launched only against those who were parties to the suit and against whom plaintiffs have already got a judgment in their favour. It must also know whether the Executing Court should issue any process against him, in the manner prayed for by the decree-holder. Normally execution is launched only against those who were parties to the suit and against whom plaintiffs have already got a judgment in their favour. It is only in an infinitely small number of cases that it may be possible to seek execution against a third party, but rule of caution requires that there must be some mention of relevant facts in the execution application itself which may go to fasten the liability- on the person named in column (i) of the execution application to enable the court to assess prima facie, the alleged liability of such person. 8. In Chandra Shekhar v. Manohar Lal, 1935 AWR (HC) 266, a Division Bench of this Court held that the court executing the decree cannot go behind the decree. There a decree was passed against the minor plaintiffs and their father was not shown as a party except so far that he appeared as the next friend of the minor. It was held that the decree-holders cannot execute their decree for costs against him. who was not shown in the decree as a party. 9. Similarly in Leelawati Ammal v. Neni Kaur Bai, AIR 1943 Mad 179 a Division Bench of that court held .that a decree can be executed without the judgment-debtor or his representative being made a party to the execution proceedings even when the decree sought to be executed is a money decree against the judgment-debtor. All that Order 21, Rule 11 requires is that the names of parties to the suit should be mentioned and also the name of the person against whom the execution is sought. Where, therefore, a property attached before judgment is sold during the pendency of the attachment and the judgment-debtor adjudicated an insolvent in the meantime, an application for execution by sale of the attached property after bringing the purchaser on record was maintainable. Official assignee need not be joined as a party. 10. In this Madras case, the name of the person against whom the decree was sought to be executed, though he was not a party to the suit, had been mentioned in the execution application in the column showing the name of the person against whom the decree was sought to be executed. 11. 10. In this Madras case, the name of the person against whom the decree was sought to be executed, though he was not a party to the suit, had been mentioned in the execution application in the column showing the name of the person against whom the decree was sought to be executed. 11. From the above two cases it is quite obvious that before execution proceedings can be taken against an individual who is not a party to the decree, a mention of his name must find place in the execution application and there should be mention of the circumstances which entitle the decree-holder to execute the decree against him. 12. It was, however, contended by the learned counsel for the respondent-decree-holder that the revisionists had in fact filed an objection under Order 21, Rule 58, CPC against an order of the Executing Court directing the attachment of its money for realisation of the decree. The said objection was, however dismissed by the Executing Court holding that the judgment-debtor was liable to pay the money due as the arrears of salary of the decree-holder for a period subsequent to 31st March, 1971. No appeal or suit was filed challenging this order and it was allowed to become final. It was, therefore, submitted by him that the revisionists cannot again question the attachment of its money by the decree-holder on the same ground. It may be stated here that an objection under Or. 21, Rule 58 is an objection against a particular attachment order. At the time when the earlier objections under Or. 21, R. 58, CPC, filed by the revisionists had been dismissed the attachment was for a sum of Rs. 19,000 and odd and, therefore, the decision of the court, even if it be final, will be so only as regards that particular attachment and not further. That order can have no binding effect in respect of any subsequent order of attachment in respect of some other money or property. The impugned order was passed while rejecting a revisionists objection against the attachment of another sum of money and, therefore, any decision of the Executing Court disposing of an objection under Or. 21, Rule 58, CPC earlier cannot come in their way when legality of a latter attachment is in question. 13. The impugned order was passed while rejecting a revisionists objection against the attachment of another sum of money and, therefore, any decision of the Executing Court disposing of an objection under Or. 21, Rule 58, CPC earlier cannot come in their way when legality of a latter attachment is in question. 13. A perusal of the record of the court below shows that initially the execution was started for the recovery of Rs. 13,686 only against the judgment-debtor by sale of certain movable property belonging to the Institution. Subsequently, however, by means of an amendment the decretal amount, as mentioned in clause 7 of the application for execution was amended as Rs. 35,171-50 being the arrears of salaries etc. from 1-11-1970 to 30-9-1975. This amount was sought to be recovered also from the attachment and sale of some immoveable property belonging to the Institution. At no stage, was any execution sought against the State of U.P. of the District Inspector of Schools by incorporating their nan es also in clause 9 of the execution application nor did the decree-holder ever pray for taking proceedings by attachment of any property belonging to the revisionists. It appears that on a mere application of the decree-holder the Executing Court directed attachment of various amounts, be it in the Post Office or in the bank and irrespective of the fact whether it belonged to the-judgment-debtor or to the revisionist. The executing Court never took any trouble to find out whether any such prayer was incorporated by the decree-holder in his execution application. .It is surprising that the court should proceed to direct the attachment of money belonging to the State of U.P. even when there was no prayer to do so in the execution application. 14. The learned counsel for the respondents has vehemently urged that a mistake of this nature did not amount to an illegality and was, at best, a mere irregularity of procedure. Since in this case the State of U.P. was duly informed and an opportunity of being heard was given to it the order of attachment passed by the court below cannot be said to be illegal even though no formal prayer was made in the execution application. In any case, an application had been made by the decree-holder and the same had been taken into account by the court before directing attachment of money. I do not agree. In any case, an application had been made by the decree-holder and the same had been taken into account by the court before directing attachment of money. I do not agree. Rule 11 of Or. 21, CPC is mandatory in character. It requires that certain particulars must be disclosed in the application for execution. Para (i) and (j) of Rule 11 of this Order require that the names of the person against whom the execution of the decree is sought and the mode in which the assistance of the court is required must be mentioned in the application itself. If the application for execution requires assistance of the Court in executing a decree in a particular manner, the mode of execution cannot be altered without the lea^e of the Court. Normally such leave is not granted and the decree-holder is required to move a fresh application for execution seeking the execution of his decree by an alternative mode. In any case, it is essential that the mode of execution must be disclosed in the application itself, whether it is the same application or another application for the execution of the decree. As I have already observed, it is not mealy a defect in the execution application but is a substantial non-compliance with the provisions of Order 21, Rule 11, CPC. This illegality cannot by glossed over on a mere irregularity. The real idea behind this provision is that the Court must know before ordering any process to be issued that it is legal for the Court to issue the process against the person concerned. If, for example, the decree-holder attachment of any inalienable property the Court will certainly refuse to issue the process because in such cases issue of attachment would be futile. Similarly, if an order of execution is sought against the head of the State then also the court may, before issuing the process, require compliance of certain formalities and may, in certain cases, even refuse to issue the process. It is for this salutary object that it is essential that the court must ask the name of the person against whom the process is sought to be issued in execution and also the anode in which the assistance of the court in executing the decree was sought. It is for this salutary object that it is essential that the court must ask the name of the person against whom the process is sought to be issued in execution and also the anode in which the assistance of the court in executing the decree was sought. In my view, therefore, the order of attachment issued by the court was illegal and without jurisdiction in the circumstances of this case. On merits, the revisionist may or may not have any case, but so far the procedure is concerned, the executing court did not have any right to issue any order of attachment on the application for execution as it was before the court. 15. For the above reason, I find that although the revisionists are liable for the payment of the amount due under the decree yet the executing court had no jurisdiction to issue any order of attachment against the revisionists or any of them on the application for execution, pending before the court below. If and when a proper application comes before the court, it may issue such order as it may be entitled to. I, therefore, find force in this revision. 16. In the result, the revision is allowed. However, the parties are directed to bear their own edits of this revision.