Research › Browse › Judgment

Rajasthan High Court · body

1997 DIGILAW 511 (RAJ)

State of Rajasthan v. Jeev Raj Singh

1997-04-11

SHIV KUMAR SHARMA

body1997
Honble SHARMA, J.–This revision arises from the order dated August 5, 1995 passed by the learned Additional Civil Judge (Sr.Div.) No.5 Jaipur City whereby the objection petition filed by the petitioner under Section 47 C.P.C. in the execution proceedings instituted by the decree holder non-petitioner was dismissed. PROTRAYAL OF ESSENTIAL FACTS (2). Non-petitioner Jeev Raj Singh instituted a suit for declaration against the petitioner. Challenging the orders of dated Nov. 15, 1978, May 30, 1979 and July 22, 1981 respespectively passed by the Disciplinary Authority and the appellate authority in appeal and in review petition. The suit was decreed vide judgment and decree dated August 5, 1987 as under: ``Consequently plaintiffs suit for declaration is decreed with costs, the orders dated 5.11.78, 30.5.78 and 22.7.81 being illegal and unconstitutional are set aside and services of the plaintiff are restored with all consequential benefits but it will also be necessary to mentioned that the disciplinary authority shall be at liberty to take a fresh deci- sion in respect of the inquiry report and to proceed against the plaintiff if necessary according to rules. (3). In compliance of the said decree Jeev Raj Singh was taken on duty on August 24, 1992 but passed following order on Oct. 28, 1992: ``Salary of Shri Jeev Raj Singh Constable No. 2806/5100 is fixed at the minimum salary allowable to a Constable. Extra ordinary leave from 15.11.78 to 24.8.92 i.e. for the period he was out of service, is sanctioned. However this period will be considered for the benefit as of his pension and gratuity purposes. (4). Non petitioner Jeev Raj Singh instituted execution proceedings for execu-tion of order dated August 5, 1987 requesting to execute in decree in toto by attaching movable and immovable properties of the judgment debtors. It was averred by the decree holder that the judgment debtors were directed to take the decree holder back in the services with all consequential benefits. The services of the decree holder, though, were restored but he was not given all consequentialbenefits, therefore, the decree was not satisfied. It was averred by the decree holder that the judgment debtors were directed to take the decree holder back in the services with all consequential benefits. The services of the decree holder, though, were restored but he was not given all consequentialbenefits, therefore, the decree was not satisfied. The petitioner judgment debtors raised objection under Section 47 of the Code of Civil Procedure to the effect that decree holder was taken on duty but according to the direction issued in the decree, the disciplinary authority considered it fit not to pay emoluments from April 15, 1978 to August 24, 1992 for the period the decree holder was out of service. Forthis period Extra Ordinary Leave (E.O.L.) was granted to him and it was also ordered that this period will be considered for the benefit as of pension and gratuity purposes. (5). The learned executing court dismissed the objection vide impugned order which has been assailed in this revision. RIVAL CONTENTIONS (6). Mr.M.M. Mehrishi, learned counsel for the petitioner canvassed that the decree was fully satisfied. The executing court below did not properly appreciate the directions issued in the decree and committed jurisdictional error in dismissing the objections raised by the petitioner. (7). On the other hand Mr. B.P. Agarwal, learned counsel for the decree holder supported the impugned order and placed reliance on Madan Mohan vs. Krishan Kumar Sood (1). PRINCIPLES RELATING TO EXECUTION OF DECREES. (8). Before proceeding further, to decide the points it is convenient to keep inmind certain cardinal principles relating to execution of the decree. The executing court can not go behind the decree but must execute the decree, as it stands. The executing court is required to ensure full satisfaction of the decree by ensuring compliance of every part thereof, before treating the same as fully satisfied. The executing court can not alter the relief granted by the decree. It can not add anyword in the decree. The decree has to be executed without any additions or alterations either on the ground of equity or on the ground of morality. Where there is no ambiguity in the terms of a decree the court is bound to interpret if according to its plain meaning and can not ignore its terms or assure a mistake on the part of the parties. Where there is no ambiguity in the terms of a decree the court is bound to interpret if according to its plain meaning and can not ignore its terms or assure a mistake on the part of the parties. For the purposes of interpretation of the decree the executing court canrefer to reliefs sought in plaint and discussion in judgment to ascertain true import of the decree. Under the guise of interpretation, the executing court can not make a new decree for the parties. The benefit of the doubt must go to the judgment debtor. There is no general rule for construing decrees, each cash depends on itself. (9). In view of the above settled proposition I now proceed to examine the pivotal question arises in this revision as to whether the executing court committed jurisdictional error in dismissing the objections raised under Section 47 C.P.C. by the judgment debtors. (10). Indisputably the trial court in its decree dated August 5, 1987 granted liberty to the disciplinary authority to take further decision if necessary in respect of the inquiring report in accordance with the rules. This direction was not challenged by the decree holder and it became final. The disciplinary authority, it appears took decision withholding the emoluments for the period the decree hol-ders was out of service and treated the decree holders on extra ordinary leave for this complete period and directed that the said period will be considered for the benefit as of pension and gratuity purposes. The said decision was within the competence of the disciplinary authority in pursuance of the decree of the trial court and it could not have been questioned in the execution proceedings. Theobservations made in the decree in respect of ``all consequential benefits ought to have been read with the directions whereby liberty was granted to the disciplinary authority to take further decision against the decree holder in respect of inquiry report. (11). In Madan Mohans case (supra) the Apex Court court observed thus: ``The order which was passed by the Controller can not be said to be an order without jurisdiction. It may be a right order. It may have been a wrong order. It was not a nullity that the executing court will ignore it. But at the stage when the execution application was filed the Rent Controller can not go behind its own order. (12). It may be a right order. It may have been a wrong order. It was not a nullity that the executing court will ignore it. But at the stage when the execution application was filed the Rent Controller can not go behind its own order. (12). With due regards to the learned counsel for the decree holder, I am unable to understand as to how the ratio of Madan Mohans case, helps the decree holder. Even if for the argument sake, the directions issued by the trial court granting liberty to the disciplinary authority to take further decision, is treated as `wrong can it be said that it was a nullity ? The answer shall be in `negative. (13). The executing court below can not go behind the decree. It must construe the decree as it stands. But it appears that the executing court, in the instant case under a guise of interpretation ignored the terms of the decree and dismissed the objections raised by the judgment debtors. Thus the executing court committed jurisdictional error and if the impugned order is allowed to stand itwould occasion failure of justice. (14). In the conspectus of the above decision, I find merit in the submission made by the learned counsel for the petitioner. Accordingly the revision application and objection under Section 47 C.P.C. are allowed and the impugned order is set aside. The execution petition filed by the decree holder stands dismissed. Costs easy.