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2020 DIGILAW 491 (ALL)

Ajai Kumar v. State of U. P. Through Secretary

2020-02-13

SAURABH LAVANIA

body2020
JUDGMENT : C.M. Application No. 8686 of 2020 (Application for Execution). 1. Heard Sri G.S.L. Varma, learned counsel for the petitioner and Sri Manish Pandey, learned State counsel. 2. The present application has been filed under Rule 1 (viii) of Chapter-II read with Rule 6 of Chapter VII of the Allahabad High Court Rules, 1952. It is for preparation of decree for execution of the judgment dated 01.04.2005, passed by this Court in the present writ petition. 3. The application, under consideration, was presented in the Registry of this Court on 21.01.2020. 4. From the prayer made in the application, under consideration, which is quoted below, it is evident that the relief sought is for preparation of decree for execution of the judgment and order dated 01.04.2005, passed by this Court in the present writ petition. "Wherefore, it is most respectfully prayed, that this Hon'ble court of justice may graciously be pleased to direct the Registrar to prepare the decree on the basis of judgment dated 01.04.2005 and sent the same to the Civil court of the Competent Jurisdiction for the execution of the decree to make payment of the due salary to the petitioner w.e.f. 14.06.2000 till date, in exercise of powers conferred under Rule 1 (VIII) of Chapter II read with Rule 6 of Chapter VII of the Allahabad High Court Rules 1952, otherwise the applicant/petitioner will suffer irreparable loss and injury so that his life livelihood may not be further ruined." 5. For the purposes of disposal of the present application, it would be proper to mention that as per Article 137 provided in the Schedule to Limitation Act, 1963 (in short "Act, 1963"), an application for which no period of limitation is provided under the Act, 1963 shall be filed within three years from the date when the right to apply accrues, the same reads as under:- Description of application Period of limitation Time from which period begins to run 137. Any other application for which no period of limitation is provided elsewhere in this Division. Three years When the right to apply accrues. 6. Any other application for which no period of limitation is provided elsewhere in this Division. Three years When the right to apply accrues. 6. In the present case, in my view, the right to prefer/move application for preparation of decree was accrued to the petitioner on 04.05.2005, the date of the judgment passed in the writ petition filed by the petitioner, and as such the application, under consideration, in my view, itself is not maintainable being highly barred by limitation. 7. For disposal of the present application, it is also relevant to mention that in view of the limitation provided under Article 136 of the Act, 1963 which is quoted below, an application for execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court can be filed within 12 years from the date when the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place. 8. Proviso to it says that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. Description of application Period of limitation Time from which period begins to run 136. For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court. Twelve years [When] the decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods when default in making the payment or delivery in respect of which execution is sought, takes place: Provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. 9. It appears from the judgment and order dated 01.04.2005 and the relief sought in the present application, quoted above, that the petitioner for his money claim has approached this Court by means of the present application, filed in the Registry of this Court on 21.01.2020. 10. 9. It appears from the judgment and order dated 01.04.2005 and the relief sought in the present application, quoted above, that the petitioner for his money claim has approached this Court by means of the present application, filed in the Registry of this Court on 21.01.2020. 10. Keeping in view the aforesaid facts of the case and the provision as envisaged in Article 136 provided in the Schedule to the Act, 1963, in my view, the application of the petitioner for execution of the judgment for money claim would also be not maintainable being barred by limitation. 11. In addition to the above, with regard to compliance of the order dated 01.04.2005, passed by the writ Court, earlier the petitioner filed the Contempt Petition No. 2280 of 2009, which was dismissed on 18.02.2010. The order dated 18.02.2010 reads as under:- "This Court in Writ Petition No.5994 (S/S) of 2000 has passed an order on 01.04.2005, whereby the order was made for making the payment of salary. This contempt petition was filed on 21.10.2009 which is time barred as per section 20 of the Contempt of Court Act 1971 read with proviso of Rule 5 of the Contempt of Court Allahabad High Court, Rules 1977. The contempt petition is not maintainable being time barred. The same is accordingly dismissed as not maintainable." 12. Aggrieved by the order dated 18.02.2010, the petitioner filed the Special Appeal Defective No. 146 of 2010, which was also dismissed vide judgment and order dated 15.05.2018, after condoning the delay in filing the appeal. The order dated 15.05.2018 reads as under:- "Heard learned counsel for the appellant and learned Standing Counsel. This special appeal has been preferred by the appellant against the order dated 18.02.2010 passed by the learned Single Judge by means of which learned Single Judge has proceeded to reject the contempt petition preferred by the appellant as the same was time barred as contemplated under Section 20 of the Contempt of the court Act,1971(hereinafter referred to as, 'the Act of 1971') holding that the contempt petition was preferred at a belated stage. Learned counsel for the appellant submits that petition was moved under Article 215 of the Constitution of India as there is no limitation provided under Article 215 of the Constitution of India. It is to be noted that an application can be moved only under Section 12 of the Act of 1971. Learned counsel for the appellant submits that petition was moved under Article 215 of the Constitution of India as there is no limitation provided under Article 215 of the Constitution of India. It is to be noted that an application can be moved only under Section 12 of the Act of 1971. No other provision is existing on the basis of which the appellant can claim benefits in respect of the period of limitation. If the appellant was well advised, then, the application ought to have been moved under Article 215 of the Constitution of India in the pending writ petition but that was never done. Further, appellant has to proceed before this Court under Section 12 of the Act of 1971 as the said powers are vested with this Court but the same was never invoked by the appellant. Therefore, in the aforesaid circumstances, this special appeal is liable to be dismissed and is hereby dismissed as the same has no merit." 13. After the order dated 15.05.2018 passed in the Special Appeal Defective No. 246 of 2010, the petitioner moved the application for review of the judgment and order dated 15.05.2018. The same was rejected by the Division Bench of this Court vide judgment and order dated 20.11.2019, which reads as under:- "Heard Mr. G.S.L. Verma, learned counsel for appellant-applicant as well as Mr. Arun Kumar, learned counsel for respondents no. 2 and 3 on the application for review and condonation of delay application. This review application has been filed against the order dated 15.5.2018 whereby the special appeal has been dismissed on merit. Learned counsel for review-applicant submits that the findings recorded by the appellate Court are perverse and not sustainable in law. We are of the considered view that we in the coordinate Bench cannot look into the findings recorded by another coordinate Bench. The scope of review is very limited. The review application as such deserves to be dismissed. In view of above, we do not find any reason to condone the delay. The application for condonation of delay (CMA No. 27063 of 2019) and application for review (CMA No. 82290 of 2018) are rejected." 14. The scope of review is very limited. The review application as such deserves to be dismissed. In view of above, we do not find any reason to condone the delay. The application for condonation of delay (CMA No. 27063 of 2019) and application for review (CMA No. 82290 of 2018) are rejected." 14. Keeping in view the aforesaid facts and circumstances of the case as well as the findings recorded by this Court with regard to limitation provided for moving an application for preparation of decree and for execution of the order, this Court finds that the present application has no merit. Accordingly, the application, in issue, is rejected. The matter is consigned to record.