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2002 DIGILAW 118 (CAL)

Sujoy Kumar Das v. Nani Gopal Chell

2002-02-21

Bhaskar Bhattacharya

body2002
JUDGMENT Bhaskar Bhattacharya, J.: This revisional application is at the instance of judgement-debtor and is directed against order dated August 7, 2001 passed by the learned District Judge, Purulia in Civil Revision Case No. 35 of 2001 thereby affirming Order No. 99 dated May 14, 2001 passed by the learned Civil Judge, Senior Division, Additional Court, Purulia in Misc. Case No.8 of 2000 arising out of Title Execution Case No.4 of 1993. 2. The opposite party No.1 filed a suit against the petitioner and opposite parties No.2 and 3 for declaration that he was a Medical Officer of West Bengal Health Service under Government of West Bengal and was entitled to get a decree for recovery of Rs. 6,546.15 paise as against the period of leave. In the said suit, the opposite party also prayed for his reinstatement in service, costs of the suit and any other relief or reliefs that he might be found entitled to in law. Ultimately, the learned trial Judge decreed the suit in the following terms:- "that the suit be and the same is decreed on contest with costs against the defendant No.3 and ex parte without cost against the rest. It is hereby declared that the plaintiff is still a Medical Officer in the West Bengal Health Service under the Government of West Bengal. He is also entitled to get a decree for recovery of Rs.6,546.15 paise as against the period of leave, if the leave is found due. The plaintiff will also be enticed to recover so much of the amount which would be admissible to him under the Rules". 3. Being dissatisfied, the State of West Bengal preferred an appeal being Title Appeal No. 44 of 1993 before the learned Additional District Judge, Purulia but the said appeal was dismissed thereby affirming the judgement and decree of the learned trial Judge. No further appeal was preferred by any of the parties against such appellate decree. 4. Subsequently, the plaintiff/decree-holder put the said decree into execution thereby giving rise to Title Execution Case No.4 of 1993. In the said execution application the opposite party No.1 prayed for realization of Rs. 5,41,112.15 paise towards arrears of salary. A statement of account was also annexed to the execution application showing therein the year wise breakup of the amount payable to the petitioner under Ropa Rules. 5. In the said execution application the opposite party No.1 prayed for realization of Rs. 5,41,112.15 paise towards arrears of salary. A statement of account was also annexed to the execution application showing therein the year wise breakup of the amount payable to the petitioner under Ropa Rules. 5. The proforma-opposite parties No.2 and 3 herein filed an application under section 47 of the Code of Civil Procedure before the learned Executing Court thereby challenging the maintainability of the application for execution. The said application gave rise to Misc. Case No.8 of 2000. The sum and substance of the objection raised by those judgement debtors was that the decree having been passed only for a sum of Rs. 6,546.15 paise, the Court lacked inherent jurisdiction to proceed with the case of execution for realization of the amount of Rs. 5,41,112.15 paise. 6. The learned Executing Court by order dated May 14, 2001 dismissed such application under section 47 of the Code of Civil Procedure thereby holding that the claim of decree-holder towards arrear of salary could not be disputed by the judgement-debtors. 7. Being dissatisfied, the petitioner and the proforma opposite parties No.1 and 2 preferred a revisional application under section 115A of the Code of Civil Procedure before the learned Revisional Court below and by the order impugned in this application, the said court has dismissed the revisional application. 8. Being dissatisfied, the judgement-debtor No.3 has alone come up with the instant revisional application under Article 227 of the Constitution of India. 9. Mr. Kar Gupta, the learned counsel appearing on behalf of the petitioner has submitted before this court that the learned courts below acted illegally and with material irregularity in overruling the objection that the execution application for realization of Rs. 5,41,112.15 paise was not maintainable. Mr. Kar Gupta contends that the decree being one for recovery of a specific amount of Rs. 6,546.15 paise, learned executing court cannot pass any order for realization of more than that amount. Mr. Kar Gupta submits that by the original decree, merely a declaration was given to the plaintiff authorizing him to file a second suit for realization of the amount by virtue of the declaration but the said declaratory decree authorizing plaintiff to get further amount cannot be enforced by filing an execution case. 10. Mr. Mr. Kar Gupta submits that by the original decree, merely a declaration was given to the plaintiff authorizing him to file a second suit for realization of the amount by virtue of the declaration but the said declaratory decree authorizing plaintiff to get further amount cannot be enforced by filing an execution case. 10. Mr. Mukherjee, the learned counsel appearing on behalf of the decree-holder has on the other hand supported the orders passed by the learned courts below and has contended that the State of West Bengal having failed to dispute the amount claimed in the execution application, sitting in revision this Court should not interfere with the order impugned. Mr. Mukherjee contends that his client already paid requisite court fees on the amount claimed in the execution case and as such there is no bar of giving such relief. Mr. Mukherjee contends that there is no necessity of filing a fresh suit for realization of the amount claimed in the execution application. 11. Therefore, the question that falls for determination in the application is whether an Executing Court was justified in permitting the decree-holder to realize a sum of Rs. 5,41,112.15 paise from the judgement-debtor, although such amount was not specified in the decree. 12. I have already indicated that by the decree, the decree-holder has been given a declaration that he was still in West Bengal Health Service and was entitled a decree for recovery of Rs. 6,546.15 paise as against the period of leave due. In addition to the aforesaid relief, the plaintiff was also permitted to recover so much of the amount which would be admissible to him under the Rules, but that amount was not calculated. 13. The decree-holder by filing execution case has in detail given the chart showing total amount payable to him from 1977 to May 1993. The decree-holder has also paid ad valorem court fees on the aforesaid Rs.5,41,112.15 paise before the learned Executing Court. The sole witness for the applicants under section 47 of the Code of Civil Procedure did not dispute the amount claimed by the decree-holder in the application for execution. The said witness in cross-examination specifically admitted that it was not possible for him to give the actual amount of the salary payable to the decree-holder. The sole witness for the applicants under section 47 of the Code of Civil Procedure did not dispute the amount claimed by the decree-holder in the application for execution. The said witness in cross-examination specifically admitted that it was not possible for him to give the actual amount of the salary payable to the decree-holder. He also admitted that he did not peruse the statement of account filed by the decree-holder in support of his claim of Rs. 5,41,112.15 paise. Therefore, it is apparent that no material could be placed by the applicants under section 47 of the Code disputing correctness of the amount claimed by the decree-holder. The only objection that has been raised by the judgement-debtors is that the learned Executing Court was not competent to grant the relief claimed in the execution case and that the decree-holder is required to file a fresh suit claiming the aforesaid amount of Rs. 5,41,112.15 paise. 14. Mr. Kargupta in this connection has placed strong reliance upon a decision of the Supreme Court in the case of State of M. P. vs. Mangilal Sharma, reported in 1998 (2) SCC page 510, in support of his aforesaid contention. 15. In the aforesaid case of State of M. P. vs. Mangilal Sharma, the decree that was sought to be executed was couched in the following terms:- "It is ordered and decreed that (a) the plaintiffs suit is decreed with costs and this is declared that plaintiff is still in continuous service of defendant and his services are not terminated. The defendant will also bear the cost of the suit of the plaintiff along with its own cost and that the sum of rupees 63.50 be paid by the defendant to the plaintiff on account of this suit with interest thereon at the rate of eligible per cent per annum from this day to day of realization." 16. The defendant will also bear the cost of the suit of the plaintiff along with its own cost and that the sum of rupees 63.50 be paid by the defendant to the plaintiff on account of this suit with interest thereon at the rate of eligible per cent per annum from this day to day of realization." 16. In the context of such a decree, the Apex Court in the said case held that a declaratory decree merely declares right of the decree-holder vis-a-vis the judgement-debtor and does not in terms direct the judgement-debtor to do or refrain from doing any particular act of things: Since, in the said case the decree did not direct reinstatement or payment of arrears of salary, the learned Executing Court, the Supreme Court proceeded, could not issue any process for the purpose as that would be going outside or beyond the scope of the decree. According to the Apex Court, in the said case, the respondent as decree-holder was free to seek his remedy for arrears of salary in that suit for declaration and the Executing Court had no jurisdiction to direct payment of salary or grant any other consequential relief, it did not flow directly and necessarily from the declaratory decree. 17. In the instant case, the position is quite different. As pointed out earlier, the court has not only granted a decree for specified sum of Rs. 6,546.15 paise as against period of leave but has also authorized the plaintiff to recover so much of the amount which would be admissible to him under the Rules and such direction has been incorporated in the decree itself. Therefore, the plaintiff is entitled to recover the aforesaid amount by virtue of the decree itself. In the execution application he has given the calculations in detail and has also paid court fees on that amount. I, thus, find that the aforesaid decision relied upon by Mr. Kar Gupta has no application to the facts of the present case inasmuch as in addition to the decree for declaration that the plaintiff is still in West Bengal Health Service, the court has also authorised the plaintiff to recover a specified amount as well as the amount that will be found due and payable under Rules. Kar Gupta has no application to the facts of the present case inasmuch as in addition to the decree for declaration that the plaintiff is still in West Bengal Health Service, the court has also authorised the plaintiff to recover a specified amount as well as the amount that will be found due and payable under Rules. I have already pointed out that the sole witness for judgement-debtor could not dispute the correctness of the amount claimed by the decree-holder in the application for execution. 18. Therefore, the learned Executing Court rightly passed an order for realization of the amount of Rs. 5,41,112.15 paise, which is the amount which would be admissible to the plaintiff under the rules of service. 19. It is now a settled law that in execution of a decree, if a decree-holder seeks to recover something in excess of the decree, a judgement debtor is entitled to resist such claim by filing an application under section 47 of the Code of Civil Procedure and in such a situation it is the duty of the Executing Court to decide the allegation of excess claim. (See Merla Ramanna vs. Nallaparaju and Ors., AIR 1956 SC page 87 at page 91). In the case before us, the decree itself having permitted the decree-holder to recover the amount that will be found due and payable under the Rules, the decree-holder claimed Rs. 5,41,112.15 paise as according to him that was the amount payable under the Rules. Therefore, the judgement-debtors were entitled to show that the decree-holder was not entitled to so much amount according to the Rules and Lo point out the exact amount. Inspite of giving opportunity of disputing the amount claimed by the decree-holder, the judgement-debtors could not produce any material showing that the amount claimed by the decree-holder was excessive. Thus, the learned Executing Court acted within its jurisdiction in rejecting the objection raised by the judgment-debtors. 20. The learned revisional courts below also rightly dismissed the revisional application preferred by the judgement-debtors against the order passed by the learned Executing Court. 21. Apart from the aforesaid fact, there is another obstacle in the way of the present petitioner. This revisional application under Article 227 of the Constitution of India has been filed by Directorate of Health Service who was defendant No.2 in the suit. 21. Apart from the aforesaid fact, there is another obstacle in the way of the present petitioner. This revisional application under Article 227 of the Constitution of India has been filed by Directorate of Health Service who was defendant No.2 in the suit. It appears from the record that application under section 47 of the Code was filed by defendant Nos. 1 and 3 before the learned Executing Court. When the learned Executing Court dismissed such application, the revisional application before the learned District Judge was however preferred by all the three judgement-debtors including the present petitioner. The present petitioner not having raised any objection under section 47 of the Code, the revisional application at his instance before the learned revisional court below was thus not maintainable. Before this court, the judgement-debtor Nos. 1 and 3 have not preferred any application challenging the order passed by the Revisional Court below. Since the judgement-debtor Nos. 1 and 3 have accepted the order of the learned Executing Court rejecting their application under section 47 of the Code, the present petitioner who was judgement-debtor No.2 having failed to raise any objection before the learned Executing Court cannot be permitted to challenge the said order. Therefore, the present revisional application under Article 227 of the Constitution of India at the instance of judgement-debtor No.2 is not maintainable. 22. Thus, the petitioner is not only entitled to get any relief on merit or but also on the aforesaid ground mentioned in the previous paragraph. 23. The revisional application is thus dismissed. No order as to costs. Revisional application dismissed.