Central Council For Research In Ayurveda & Sidda, New Delhi v. Janak Raj
2008-09-26
VINOD K.SHARMA
body2008
DigiLaw.ai
Judgment Vinod K.Sharma, J. 1. The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India to challenge the order dated 22.2.2007 passed by the learned Executing Court vide which the objections filed by the petitioner have been ordered to be dismissed and the orders have been issued for attachment to execute the decree. 2. The respondent-decree holder filed a suit for declaration to the effect that the defendant has no right, authority, power or jurisdiction to disobey the order of Central Council for Research and Ayurveda New Delhi passed by Central Council vide order No. F-3-1/82 CCRAS/Estt. dated 29.8,1983 whereby order No. 56/82 dated 14.7.1982 passed by the defendant was treated as cancelled and the plaintiff was treated as Laboratory Technical Technician w.e.f. the date the defendant passed the order dated 12.7.1982 and inaction of the defendant is illegal, unconstitutional, arbitrary, ultra wires, without jurisdiction and authority, misuse and abuse of power, vindictive, mala fide and plaintiff in view of the order of the Central Council is entitled to have his pay fixed as Laboratory Technician on the post of his pay drawn by him on 11.7.1982 before the date of passing the illegal order by the defendant and for permanent injunction restraining the defendants from interfering in the order of the Central Council Research and Ayurveda and Sida dated 29,8.1983 and with holding the salary of the plaintiff and other rights and benefits and rank and status as Laboratory Technician. 3. The suit filed by the decree-holder was decreed on 19.12.1992 and the decree passed, reads as under: "This suit coming on this day for final disposal before S. Gurmail Singh Dhillon, P.C.S. Sub Judge III Class Paiiala in the presence of Sh. S.P. Joshi, counsel for the plaintiff and Sh. S. K Sharma, counsel for the defendants. It is hereby ordered that I pass a decree in favour of the plaintiff against the defendants with costs to the effect that plaintiff is entitled to get salary for post of Laboratory Technician for the period from 12.7.82." 4. The petitioner filed objections to the execution of decree by raising plea that no post of Laboratory Technician is available after reinstatement of Sh, Santosh Kumar in the Indian Institute of Kayachikitsa, Patiala. 5. The appeal filed against the decree also stands dismissed. 6.
The petitioner filed objections to the execution of decree by raising plea that no post of Laboratory Technician is available after reinstatement of Sh, Santosh Kumar in the Indian Institute of Kayachikitsa, Patiala. 5. The appeal filed against the decree also stands dismissed. 6. It was claimed that appeal against the judgment and decree was pending before the Honble High Court. The objections were aiso raised that decree-holder could not be allowed to join any post after the joining of Santosh Kumar. The objections were also raised that as no amount was mentioned in the decree it was not possible to make the payment as claimed by the decree-holder 7. The decree-holder fiied reply to the objection petition and the averments made in objections were specifically denied. It was claimed that the decree holder had no intimation of the Regular Second Appeal filed in the Honbie High Court nor any stay has been granted. The objections were also taken that the judgment could not be assailed in the execution proceedings as the executing Court cannot go behind the decree. 8. it is also the case of the petitioner that the decree is a declaratory decree and not money decree and, therefore, was not executable. 9. The objections were aiso raised that no issues have been rramed by the Court and the decree has been obtained by the decree-holder by fraud and it was the duty of the Court to frame proper issues. 10. The decree-holder claimed that in view of the specific terms of the decree he was entitled to get salary for the post of Laboratory Technician from 12.7.1982 onwards in the pay scale of Rs. 380-560 with all rights, benefits and privileges attached to that post, The piea was also raised that the objector had no right, authority and power to disobey the order of CCRAS, New Delhi passed by the Director whereby the order No. 56/82 dated 12.7.82 passed by the judgment debtor/ objector was treated as cancelled and the decree-holder was treated as Laboratory Technician with effect from 12.7.1982. The plea of the petitioner that issues were required to be framed was also controverted. 11.
The plea of the petitioner that issues were required to be framed was also controverted. 11. The learned executing Court came to the conclusion that the objections were not tenable as objections were taken by the judgment debtor on 6.12.1996 where a plea was taken that decree-holder is liable to prepare the details of the amount claimed which he wanted in terms of the decree and in absence of such details it was not possible to make any payment. 12. The learned executing Court in view of the facts brought on record came to the conclusion that the objections taken by the petitioner are not maintainable as it was not open to the judgment-debtor to question the legality of the decree in the present execution. The Court also held that the objections taken by the judgment debtor were contested before the Civil Court as well as before the learned lower Appellate Court. The Court also observed that issues in the execution were framed and evidence was recorded. The Court also noticed that many applications were filed by the petitioner in the present case i.e. an application for dismissing the execution application, the application for amendment of objections and all those were decided against the petitioner-judgment-debtor. The objections were, thus, rejected. 13. Mr. S.K. Sharma, learned counsel for the petitioner placed reliance on the judgment of the Honble Supreme Court in the case of State of Uttar Pradesh vs. Ramkrishan Burman (dead) by LRs. and others, 1970(1) Supreme Court Cases 80 to contend that the decree for declaration of title to money or other property is not a decree for money or other property. The expression "decree for money or other property" means a decree for recovery of money or other property. It does not include a decree concerning title to money or other property and the decree passed on such claim is not an instrument securing money or other property; such a decree is a record of the formal adjudication of the Court relating to a right claimed by a party to a suit. It does not by its own force secure money or other property. The contention of the learned counsel for the petitioner is misconceived. The Honble Supreme Court in the case of State of Uttar Pradesh vs. Ramkrishan Burman (dead) by L. Rs.
It does not by its own force secure money or other property. The contention of the learned counsel for the petitioner is misconceived. The Honble Supreme Court in the case of State of Uttar Pradesh vs. Ramkrishan Burman (dead) by L. Rs. and others (supra) was dealing with the questions of payment of Court fee in the suit filed and not with regard to the execution of decree wherein specific direction have been issued for payment of pay scale to the decree-holder. 14. The learned counsel for the petitioner thereafter placed celiance on the judgment of Honble Supreme Court in the case of State of Madhya Pradesh vs. Mangilal Sharma, 1998(1) SCT 322. wherein the Honble Supreme Court has been pleased to lay down that where a decree-holder obtains a decree of declaration that he is assumed to be continuing in service but omitted to claim any consequential relief, the mere decree of declaration is not executable as the decree for declaration merely declares the status of the parties. The reliance by the learned counsel for the petitioner on the judgment of Honble Supreme Court in the case of State of Madhya Pradesh vs. Mangilal Sharma (supra) is also misconceived as the decree passed in the present case would show that the specific directions have been issued that the decree-holder was entitled to get salary post of Laboratory Technician for the period from 12.7.1982 onwards in the pay scale of Rs. 380-560 with all rights, benefits and privileges attached to that post. 15. The order passed by the judgment-debtor was specifically set aside. It was further ordered in the decree that would be treated as Laboratory Technician w.ef. 12,7.1982. 16. The learned counsel for the petitioner thereafter placed reliance on the judgment of the Honble Supreme Court in the case of Rajasthan State Road Transport Corporation vs. Shyam Bihari Lal Gupta, 2005(4) SCT 207. The reliance on this judgment is also of no help to the petitioner as in the said case the termination of service of the employee was set aside by the Civil Court by holding that the termination was void ab-initio with continuity of service. It was held that in the execution of the said decree the Court could not grant wages as there was no decree for grant of monetary benefit.
It was held that in the execution of the said decree the Court could not grant wages as there was no decree for grant of monetary benefit. At the sake of repetition, it may be mentioned that in the present case there are specific directions for payment of pay scale to the decide holder. 17. The petitioner also placed reliance on the judgment of the Honble Supreme Court in the case of R.S.R.T.C. and another vs. Ladulal Mali, 1996(2) SCT 60. In the said judgment again the Honble Supreme Court has been pleased to lay down that the declaratory decree declaring termination of an employee as illegal, the executing Court could not grant back wages as consequential relief. It was held in the said judgment that the executing Court cannot go. beyond the scope of decree. This judgment would, in fact, go against the petitioner as the petitioner raised objections before the executing Court against the decree passed by the Civil Court. Thus, this authority is also of no help to the petitioner. 18. The learned counsel for the petitioner also placed reliance on the judgment of this Court in the case of State of Haryana and another vs. Gurmej Singh, 2006(2) SCT 114 (P&H). In this case also this Court merely held that in a suit for declaration only rights of parties are determined which does not entitle to arrears of salary unless he claims further relief of arrears of salary in accordance with law. It is not understood as to how this authority can be of any help to the petitioner ,in view of the decree passed by the Civil Court, which has been reproduced above. 19. The learned counsel for the petitioner thereafter placed reliance on the judgment of the this Court in the case of Charanjit Singh and another vs. Manmohan Singh & others, 1989 Civii Court Cases 190 (P&H) to contend that the executing Court is bound to frame issues where dispute requires recording of evidence. The judgment relied upon by the learned counsel for the petitioner does not advance the case of the petitioner as in the present case it is observed that petitioner filed number of objections wherein the issues were framed and parties were even permitted to lead evidence. It was thereafter that the objections were dismissed. The petitioner filed no application thereafter. 20.
It was thereafter that the objections were dismissed. The petitioner filed no application thereafter. 20. The learned counsel for the petitioner thereafter placed reliance on the judgment of the Honble Madras High Court in the case of Vimale Ammal vs. C. Suseela & others, 1991 Civil Court Cases 632 (Madras) to contend that the decree which is nullity can be challenged even at the execution stage. This authority would have also no application as the decree passed could not be said to be a nullity. The Court had the jurisdiction to adjudicate the ciaim raised in the suit and decree has been passed in favour of the petitioner by competent Court having jurisdiction. 21. The learned counsel for the petitioner thereafter contended that the suit filed by the decree-holder was not competent as the judgment-debtor is a registered society and, therefore, cannot be said to be a State. The reliance in support of this has been placed on the Judgment of the Honble Jammu and Kashmir High Court in the case of Girdhari Lai vs. Central Council for Research, 2002(4) SCT 564. This authority is also of no help as the Honble Jammu and Kashmir High Court in the said case was dealing with a question whether writ would lie against the Central Council for Research under Article 226 of the Constitution of India. 22. The learned counsel for the petitioner thereafter placed reliance on the judgment of the Honble Supreme Court in the case of Sukhdev Singh and others vs. Bhagatram Sardar Singh Raghuvanshi and another, 1975(1) SLR 605 whereir it has been laid down that in the case of a contractual relationship against the termination of service by a non-statutory body the employee having no statuton status cannot claim declaration for continuance in service as the remedy would be to file a suit for damages. The reliance on this judgment by the learned counsel for the petitioner is totally misconceived. 23. Firstly it is not open to the petitioner to raise such plea before the executing Court. Even otherwise it is not a case of enforcement of contract of service but with regard to the entitlement of a particular pay scale on the basis of an order passed by the competent authority. 24.
23. Firstly it is not open to the petitioner to raise such plea before the executing Court. Even otherwise it is not a case of enforcement of contract of service but with regard to the entitlement of a particular pay scale on the basis of an order passed by the competent authority. 24. It was finally contended by the learned counsel for the petitioner that the salary of the employee could not be attached in the execution of the decree. This contention has been raised on the basis of law laid down by this Court in the case of Pritam Singh Salni vs. State of Punjab, 2003(1) RCR(Civil) 659. This Court in the case of Pritam Singh Saini vs. State of Punjab (supra) was pleased to lay down that the salary of the employee is not property of the State which could be attached for the execution of the decree. The reliance on this judgment is totally misconceived as no basis have been set up to raise such plea nor any order has been placed on record showing the attachment of the salary of employee. 25. For the reasons stated above, I find no force in this revision petition, which is accordingly dismissed in limine.