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2003 DIGILAW 624 (RAJ)

Mukand Das v. State of Rajasthan

2003-04-24

PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the petitioner. 2. This is unfortunate litigation where the services of the decree holder was illegally terminated on 23rd Jan., 1956 by the Director, Medical & Health Services, Jaipur, therefore, the plaintiff decree holder filed the suit challenging the termination order dated 20th Jan., 1956. The suit was compromised and a compromise decree was passed on 5th April, 1963 wherein it has been held that the plaintiff will be entitled to be in service and the order dated 23rd Jan., 1956 of the Director, Medical & Health Services, Jaipur terminating the services of the plaintiff would be ineffective and he was entitled to his full salary from 28th June, 1952 to 23rd Jan., 1956. There are other directions in tho decree also. The plaintiff decree holder submitted execution petition on 1st Nov., 1965 wherein appellant claimed Rs. 44,083.05 and submitted that after adjusting a sum of Rs. 9,319.30 already paid to the appellant by the respondents, the balance amount of Rs. 34,763.75 was payable to the appellant which amount may be recovered by attachment and sale of the property of the respondent. It appears that because of the dispute regarding actual amount due, an objection petition was submitted by the judgment debtor under Order 21 Rule 30 CPC. The Executing Court i.e. Additional Distt. Judge No. 2, Jodhpur decided the petition filed by the judgment debtor against which the plaintiff i.e. present petitioner preferred the S.B Civil Execution First Appeal No. 11/1973 and the matter was remanded to the Executing Court with certain directions. The Executing Court i.e. Additional Distt. Judge No. 2, Jodhpur decided the petition filed by the judgment debtor against which the plaintiff i.e. present petitioner preferred the S.B Civil Execution First Appeal No. 11/1973 and the matter was remanded to the Executing Court with certain directions. The directions were given by this Court after holding that the petitioner is entitled for the payment of half salary from 23rd Jan., 1956 to 4th April, 1963 by taking into account the increments and revision of pay granted to other employees holding the same post as the applicant and that appellant would also be entitled to calculation of his half pay for the period from 23rd Jan., 1956 to 4th April, 1963 by taking into account the house rent allowance payable to the employees holding the same post.It is submitted by learned counsel for the petitioner that after the direction of this Court to the Executing Court after giving full opportunity to the judgment debtor issued attachment warrant and in compliance thereof the judgment debtor deposited the decreetal amount, which has been paid to the petitioner decree holder.The judgment debtor thereafter, submitted an application under Section 47 read with Section 151 CPC before the Executing Court wherein issues were framed by the Executing Court and the Executing Court decided the issue No. 5 as a preliminary issue by order dated 19th April, 1994. According to learned counsel for the petitioner decree holder, the matters which have already been concluded and stand adjudicated by the Executing Court are sought to be re-opened by the Executing Court despite the fact that the issue of the account stands settled and concluded in view of the various proceedings taken in the Executing Court itself. It is also submitted in the execution proceeding and at different stages in the same proceedings, the principles of res-judicata applies, is no more in dispute, therefore, the order as of the Executing Court dated 19th April, 1994 is absolutely illegal whereby the Executing Court held that the Executing Court can redetermine the amount for which the decree holder is entitled.I perused the application filed by the judgment debtor under Section 47 read with Section 151 CPC and the impugned order dated 19th April, 1994 and also copy of the judgment of this Court provided by learned counsel for the petitioner referred above. Learned counsel for the petitioner also provided the certified copies of the order-sheets of the Executing Court for perusal of this Court. 3. A bare perusal of the entire proceedings taken before the Executing Court in the petition filed by the judgment debtor under Section 47 CPC are nothing, but an abuse of the process of Court. It appears that the State-non-petitioner was under impression that they may wake up at any time in the judicial proceedings and submit that they can dispute the amount payable to their employee, whose service was terminated illegally as back as in the year so 1956 and who obtained the decree against the respondents in the year 1963 and State was given more than required opportunities to settle the account of the petitioner decree holder, that too, with respect to the salary and allowances, but after having several opportunities, the judgment debtor State very specifically submitted that they do not want to file any reply to the statement of account submitted by the decree holder before the Executing court, can raise the objection again. 4. It is clear from the order-sheets from the file of execution petition that the judgment debtor was granted time to file reply from 15th Sept., 1989 to 3rd Jan., 1992, but on 21st Feb., 1992, learned counsel for the State very specifically submitted that the judgment debtor do not want to file any reply with respect to the amount, which has been claimed by the decree holder. On this submission only the attachment warrant was issued by the Executing to Court by order dated 21st Feb., 1992. The petitioner decree holder submitted an application that the judgment debtor may be directed to make the fixation of the decree holder in a change pay scale after giving details of rate of increment and the amount of house rent etc., which is in the knowledge of the judgment debtor,. For this, the Executing Court again granted time to file reply to the judgment debtor and ultimately, no reply was filed by the judgment debtor. The Executing Court vide order dated 21st March, 1992 directed judgment debtor to give the complete statement of account. The decree holder also submitted his statement of account on 8th Feb., 1992. For this, the Executing Court again granted time to file reply to the judgment debtor and ultimately, no reply was filed by the judgment debtor. The Executing Court vide order dated 21st March, 1992 directed judgment debtor to give the complete statement of account. The decree holder also submitted his statement of account on 8th Feb., 1992. The judgment debtor neither furnished their statement of accounts nor Submitted any reply or objection with respect to the account submitted by the decree holder, therefore, the court issued warrant for recovery of Rs. 58,900.28 by order dated 18th Feb., 1992. Ultimately, on 29th Oct., 1993, a cheque of the above referred amount was deposited in the Court by the judgment debtor, which was paid to the decree holder upon furnishing the solvent security for the said amount. in this manner a poor employee of the State could recover his salary and allowances in thirty years, but here is not the end of agony of the petitioner. 5. The above facts disclose the manner in which the petitioner decree holder was harassed by the non- petitioner respondent. The non-petitioner judgment debtor was served with the notice under Order 21 Rule 22 CPC and they did not choose to raise any objection regarding execution petition filed by the petitioner. It is pertinent to mention here that on 21st Feb., 1992 In execution proceedings, it was specifically submitted on behalf of the State that the judgment debtor State has nothing to say about the amount claimed by the decree holder from the judgment debtor. Not only this, but also the Executing Court shown its indulgence by not issuing attachment warrant for recovery of the amount and again gave opportunity to the judgment debtor by order dated 22nd Jan, 1993 to disclose the amount of the decree holder due in the non-petitioner State. This opportunity was not availed by the State 4o to raise objection, thereafter, the attachment warrant was issued and a cheque of the disputed amount was deposited in the Court. 6. The Trial Court has committed grave illegality in holding that despite all above orders of the Executing Court, the Executing Court can inquire into the submission made by the judgment debtor in their application under Section 47 CPC. 6. The Trial Court has committed grave illegality in holding that despite all above orders of the Executing Court, the Executing Court can inquire into the submission made by the judgment debtor in their application under Section 47 CPC. A bare perusal of the facts mentioned in the application itself shows that the judgment debtor had no objection, when he could have raised and now want an inquiry about how much amount of the decree Icier is due In the judgment debtor for which a notice under Order 21 Rule 2, CPC was served upon the judgment debtor and the judgment debtor did not choose to raise objection and thereafter, the judgment debtor was given cad opportunity to submit statement of account, which they did not avail and thereafter, copy of the statement of account was also provided to the judgment debtor, which was claimed by the decree holder, which was also not contested by the judgment debtor and thereafter, the order of the recovery of the amount of Rs. 58,900/- was passed by the Court, which was not challenged and still wants to re-agitate the matter before the Executing Court by filing application under Section 47 read with Section 151 CPC. 7. In view of the judgment of this Court delivered in the case of Bagh Raj v. Bhanwar Lal, reported in AIR 1966 (Raj.) 44 and judgment of Division Bench of this Court delivered in the case of Ghisalal v. Seth Kanhaiyalal, reported in 1969 RLW 467 , the objection petition is barred by the principles of res-judicata and, in addition to above, it is clear case of abuse of the process of the Court by the respondents. 8. Therefore, the revision petition of the petitioner is allowed. The is impugned order dated 19th April, 1994 is set aside and it is held that objection of the State is barred by the principles of res-judicata. The application under Section 47 CPC filed by the respondent judgment debtor Is dismissed and the petitioner is entitled for special cost of Rs. 5,000/- from the respondents.Revision Allowed on Costs of Rs. 5000/- From Respondents. *******