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Allahabad High Court · body

1999 DIGILAW 531 (ALL)

Krishna Sahi v. District Magistrate Allahabad

1999-04-17

B.K.ROY, ONKARESHWAR BHATT

body1999
JUDGMENT : - 1. THE prayer of the petitioner, though she appears to be a destitute widow of an ex judicial officer of the State, is to restrain the respondents from evicting her from the Government Premises No.-IV/469. 2 Park Road, C. M. O. Compound, Allahabad and be al lowed to live and occupy the same on the same rent until 31-10-98 or till such period she is fully paid her post-retirement benefits. 2. THE petitioner is also personally present before us. She informs us that during the pendency of this writ petition she has been paid her post-retirement benefits, but apart from it is still due to be paid by the State to her. She also informs us that she is prepared to vacate the premises within a reasonable time. We have heard her personally, as well as her learned counsel, Mr. H. R. (7) of the Act. The Tribunal granted the certificate to the respondent on 10-12-90. The respondent consequently applied for execution of the said certificate under sub section (7) of Section 5 of the Act before the District Judge, Sultanpur. The execution case ultimately came to the file of the IInd Additional District Judge, Sultanpur. The case was contested by the applicants, who have pleaded that award of the Tribunal was already acted upon by them inasmuch as the decrials amount was paid to the respondent and he was also given seniority and promotion. The execution case, according to the applicants, was, therefore, liable to be dismissed. 3. THE Court below after hearing the learned counsel for the parties considered the question as to whether the amount paid to the respondent/decree holder was short than actual decretal amount. After considering the material on the record, it was held as under: "thus, the total amount of the award and towards interest and cost has been paid to the decree holder and the execution for these points 1 and 3 is, therefore, liable to be struck off." 4. THEREAFTER, the Court below considered the questions relating to fixation of seniority and fixation of the salary of the respondent. The Court below after perusing the material on the record as follows: "therefore, the seniority has been rightly fixed by the judgment-debtor. The judgment-debtor/basic Shiksha Adhikari is directed to prepare the arrears to pay w. e. f. 28-11-77 minus the amount already paid. The Court below after perusing the material on the record as follows: "therefore, the seniority has been rightly fixed by the judgment-debtor. The judgment-debtor/basic Shiksha Adhikari is directed to prepare the arrears to pay w. e. f. 28-11-77 minus the amount already paid. It is, however, made clear that decree holder will not get any amount of interest on the arrears of pay. Further the opposite parties 2 and 3 are directed to consider about the promotion treating the decree holder to have received the selection grade w.e.f. 28-11-77 and order dated 4-1-93 which has been filed as paper No. 30/3/c2 should be revised if at all the promotion of the decree holder in above terms is to be taken into account. The promotion has already been given to the decree holder and now only national promotion has to be given. The arrears has also to be given to him accordingly. "Having recorded the aforesaid finding, the Court below has directed the judgment-debtors/applicants to submit the calculation memo by 22 October, 1993, by its impugned order dated 23-9-93. Learned standing counsel has vehemently urged that the Court below has acted illegally and with material irregularity in directing the Joint Director/basic Shiksha Adhikari to prepare the arrears to pay with effect from 28-11-77 minus the amount already paid. It was also urged that the Court below has failed to appreciate the judgment and order dated 28-5-90 passed by the Tribunal, which was already complied with and exceeded its jurisdiction to issue direction to the applicants. 5. ON the other hand, learned counsel Mr. Ashok Kumar Baldiha. Advocate appearing for the respondent supported the judgment and order passed by the Court below. It was urged that the impugned order does not suffer from any illegality or infirmity, therefore, the revision was liable to be dismissed at this stage. 6. THE applicants have filed an application for condonation of delay in filing the present revision to which and objection was filed by the contesting respondent. Although the revision was filed after inordinate delay of more than two years, however, in the interest of justice, I have condoned the delay and permitted the learned counsel for the parties to argue the matter on merits. I have considered the submission made by the learned counsel for the par ties and also perused the record. 7. Although the revision was filed after inordinate delay of more than two years, however, in the interest of justice, I have condoned the delay and permitted the learned counsel for the parties to argue the matter on merits. I have considered the submission made by the learned counsel for the par ties and also perused the record. 7. SO far as the payment of arrears of salary and interest thereon is concerned, the Court below has recorded clear and categorical finding that the decretal amount was already paid and respondent was not entitled to any interest on the said amount. As the Execution Court cannot go behind the decree, the Tribunal in its judgment and order dated 28-5-90 clearly and specifically directed that according to the Government Order dated 29-12-1991 the petitioner was entitled to selection grade from 28-11-77 and not from 1-7-1979. The said date was fixed after detailed calculation made by the Tribunal which is contained in calculation memo which forms part of the record and was marked as Anndxure-A-1. Thus, the submission made by the learned standing counsel that the respondent was not entitled to selection grade with effect from 28-11-1977 cannot be accepted. Learned standing counsel utterly failed to point out any mistake in the calculation memo referred to above, therefore, the submission made by him that selection grade cannot be given with effect from 28-11-77 cannot be accepted. Similarly the submission made by the learned counsel that the decree/award having been complied with, therefore, the execution case was liable to be dismissed cannot be accepted inasmuch as the arrears of pay of the respondent were al though paid but other directions given by the if bubal in its award/order dated 28-5- 90 were not complied with, therefore, the Court below had rightly directed the judgment-debtors to comply with the order/award of the Tribunal in exercise of its powers under Section 5 of the Act. 8. I do not find any illegality or infirmity in the order passed by the Court below. This revision fails and is dismissed. No order as to costs. Petition dismissed.