Delhi High Court
North Delhi Municipal Corporation vs Hari Kishan & Anr. on 21 July, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21st July, 2017
+ CM(M) 21/2013 & CM No.378/2013 (for stay)
NORTH DELHI MUNICIPAL CORPORATION ... Petitioner
Through: Ms. Mini Pushkarna, Ms.
Anushruti and Ms. Vasundhara
Nayyar, Advs.
Versus
HARI KISHAN & ANR. .... Respondents
Through: Mr. Vivek B. Saharya, Adv. for
R-1.
Mr. Anurag Mathur, Adv. for
R-2/DJB.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Article 227 of the Constitution of India
impugns the order [dated 26th October, 2012 in Ex.No.305/08/02 of
the Court of Additional Senior Civil Judge (ASCJ), (North), Tis
Hazari Courts, Delhi] of dismissal of two applications filed by the
petitioner/judgment debtor, both under Section 151 of the Code of
Civil Procedure, 1908 (CPC).
2. The petition was entertained and notice thereof issued. On 9 th
April, 2013, the counsel for the respondent No.1/decree holder stated
that he will not get the judgment and decree under execution executed.
The said statement continues to bind the respondent No.1/decree
holder. Resultantly, the execution proceedings before the ASCJ
remain stayed.
CM(M) No.21/2013 Page 1 of 9
3. The counsels have been heard.
4. The respondent No.1/decree holder, in or about the year 1993,
instituted a suit against the petitioner/judgment debtor/Municipal
Corporation of Delhi (MCD) for (i) declaration that the services of the
respondent No.1/decree holder stood regularised since 1 st May, 1981;
(ii) for a direction to the petitioner/MCD to regularise the services of
the respondent No.1/decree holder since 1st May, 1981; (iii) for a
direction to the petitioner / MCD to pay to respondent no.1 / decree-
holder the entire consequential benefits arising out of such
regularisation; and, (iv) for a direction to the petitioner/MCD to pay
equal pay to the respondent No.1/decree holder as being paid to
similarly situated employees of the petitioner/MCD.
5. The counsel for the petitioner/MCD states that the
petitioner/MCD was proceeded against ex-parte in the said suit.
6. Vide judgment dated 1st September, 2001 in the aforesaid suit,
being Suit No.683/1993 of the Court of Sh. Sanjay Kumar, Civil
Judge, Delhi, the petitioner/MCD was directed to regularise the
respondent No.1/decree holder since 1st May, 1991 and to pay the
entire consequential benefits and to pay to the respondent No.1/decree
holder equal pay as being paid to employees in similar position in the
regular cadre.
7. The respondent No.1/decree holder filed execution impleading
the petitioner/MCD as judgment debtor.
CM(M) No.21/2013 Page 2 of 9
8. The petitioner/MCD filed the application under Section 151
CPC aforesaid inter alia pleading (i) that the respondent No.1/decree
holder at the time of institution of the suit was working with Delhi
Water Supply & Sewerage Disposal Undertaking of the
petitioner/MCD; (ii) that the said Undertaking of the petitioner/MCD
vide the Delhi Water Board Act, 1998 was vested with the Delhi Jal
Board (DJB); (iii) that according to Section 46 of the said Act, all the
employees of the said Undertaking also stood transferred to DJB; (iv)
that the respondent No.1/decree holder also in pursuance to the said
Act was now working with DJB and thus the liability to satisfy the
decree was of DJB and not of the petitioner/MCD.
9. In the other application under Section 151 CPC, prayer was
made for impleadment of DJB.
10. The learned ASCJ has vide the impugned order dismissed both
the applications observing that the decree has to be executed as per its
terms against the petitioner/MCD. It is also noted in the order that the
petitioner/MCD has in part satisfaction of the decree already made
some payments to the respondent No.1/decree holder.
11. Though no error can be found in the reasoning of the learned
ASCJ of the Executing Court being bound to execute the decree as per
its terms but the decree under execution in the present case is of
regularisation of the respondent No.1/decree holder and for payment
of consequential benefits to the respondent No.1/decree holder. Such
a decree is in the nature of a decree for specific performance and the
question of regularising the services of the respondent No.1/decree
CM(M) No.21/2013 Page 3 of 9
holder with an employer with whom the respondent No.1/decree
holder, since the coming into effect of the Delhi Water Board Act,
1998; is not working does not arise. The liability if at all of the
petitioner/MCD under the decree would be for the period prior to the
coming into force of the said Act and that too, if permissible under the
said Act.
12. It is not in dispute that the respondent No.1/decree holder has
not superannuated as yet and is still working with DJB.
13. In these circumstances, the principle of the decree being
required to be executed as per its terms, cannot be applied.
14. The nature of the decree cannot be changed by shifting the
employment of the respondent No.1/decree holder from that under
DJB to that under MCD.
15. It may also be noted that the respondent No.1/decree holder
also, after coming into force of the Delhi Water Board Act, though
became an employee of DJB but continued to pursue the suit against
the petitioner/MCD, though must have been drawing his emoluments
after 1998 from DJB.
16. Upon the same being put to the counsel for the respondent
No.1/decree holder, he states that it was for the petitioner/MCD to
inform the aforesaid fact to the Suit Court and in which case, the
respondent No.1/plaintiff/decree holder would have substituted the
petitioner/MCD with DJB.
CM(M) No.21/2013 Page 4 of 9
17. It is the duty of the respondent No.1/decree holder as the
plaintiff to substitute the successor in interest of the defendant against
whom the decree is claimed and it is the respondent No.1/decree-
holder who only is suffering by not doing so.
18. The counsel for the petitioner/MCD in this regard has referred
to Order XXII Rule 10 of CPC and has also stated that DJB has been
appearing only in response to the applications aforesaid filed by the
petitioner/MCD.
19. In my view, the proper course of action for the respondent
No.1/decree holder in such situation is to make an application in the
suit for the purposes of substituting DJB in place of the petitioner /
judgment debtor / MCD. Per Section 46 of the Delhi Water Board Act,
the Water Supply and Sewage Disposal Account of the Municipal
Fund constituted under the Delhi Municipal Corporation Act, 1957
and all properties, assets and liabilities under the control of the Delhi
Water Supply & Sewage Disposal Undertaking immediately before
the coming into force the said Act vested in the Delhi Water Board
established under the Delhi Water Board Act and all properties, assets
and liabilities relating to sewerage under the control of the Municipal
Corporation immediately before such date vested in the Board and all
officers and employees of the Delhi Water Supply & Sewerage
Disposal Undertaking and all such employees of the Municipal
Corporation of Delhi who were engaged mainly in connection with
water supply and sewerage disposal became employees of the Board,
at the same remuneration and on the same terms and conditions, as
CM(M) No.21/2013 Page 5 of 9
they would have held if the Board had not been established. The
Delhi Water Board was thus the successor-in-interest of the petitioner
/ judgment-debtor MCD within the meaning of Order XXII Rule 10 of
the CPC. Supreme Court in Government of Orissa Vs. Ashok
Transport Agency (2005) 1 SCC 536 held that normally in a case
covered by Order XXII Rule 10 of the CPC where rights are derived
by an assignee or a successor-in-interest pending a litigation, it is for
that assignee or transferee to come on record if it so chooses and to
defend the suit. It was further held that is equally open to the assignee
to trust its assignor to defend the suit properly but with the
consequence that any decree against the assignor will be binding on it
and would be enforceable against it. It was yet further held that in
terms of Section 146 of the CPC, a proceeding could be taken against
any person claiming under the defendant or the judgment debtor and
that a person claiming under the defendant or the judgment debtor
could seek to challenge the decree or order that may be passed against
the defendant, by way of appeal or otherwise, in the appropriate
manner but it would not be open to it to challenge the decree as void
or unenforceable in execution in the absence of any specific provision
in that regard in the statute or order bringing about such a transfer or
assignment.
20. I have not come across any such provision in the Delhi Water
Board Act.
21. Reference in this regard can also be made to Bhagwan Dass
Chopra Vs. United Bank of India 1987 (Supp) SCC 536.
CM(M) No.21/2013 Page 6 of 9
22. Supreme Court in Ghantesher Ghosh Vs. Madan Mohan
Ghosh (1996) 11 SCC 446 held that Order XXII Rule 10 applies to
execution proceedings also.
23. Though Order XXII Rule 10 of the CPC provides that in cases
of assignment or devolution of interest during the pendency of the
suit, the suit, may by leave of the Court, be continued by or against
person to or upon whom such interest has come or devolved but
Supreme Court in Dhurandhar Prasad Singh Vs. Jai Prakash
University (2001) 6 SCC 534 held that even if no such step is taken,
the suit may be continued with the original party and the person upon
whom the interest has devolved will be bound by and can have the
benefit of the decree as the case may be, unless it is shown in a
properly constituted proceedings that the original party being no
longer interested in the proceeding did not vigorously prosecute or
colluded with the adversary resulting in decision adverse to the party
upon whom the interest has devolved. It was observed that the
legislature while enacting Rules 3,4 and 10 of Order XXII of the CPC
has made a clear-cut distinction; in cases covered by Rules 3 and 4, if
right to sue survives and no application for bringing the legal
representatives of a deceased party is filed within the time prescribed,
there is abatement of the suit; in cases covered by Rule 10, the
legislature has not prescribed any such procedure in the event of
failure to apply for leave of the court to continue the proceeding by or
against the person upon whom interest has devolved during the
pendency of a suit and which shows that the legislature was conscious
CM(M) No.21/2013 Page 7 of 9
of this eventuality and yet has not prescribed that failure would entail
dismissal of the suit as it was intended that the proceeding would
continue against the original party although he ceased to have any
interest in the subject of dispute. It was further held that the decree
against the original defendant in such a situation is not void.
24. The counsel for the respondent No.1/decree holder states that in
fact there is on record of the Executing Court the consent of DJB also
to abide by the decree but DJB is refusing from doing so.
25. This being a Revisional / Article 227 Roster, I am constrained
by the CPC from issuing directions as sought. It will be open to the
respondent No.1/decree holder to file a petition under Article 226 of
the Constitution of India in this regard and which, if filed, shall be
considered on its own merits.
26. The counsel for the respondent No.1/decree holder states that he
will be taking the aforesaid steps.
27. Resultantly, the petition succeeds. The order dated 26th
October, 2012 of the ASCJ is set aside. It is directed that the decree,
insofar as against the petitioner/MCD, cannot be executed owing to
the provisions of the Delhi Water Board Act, 1998. The application of
the petitioner/MCD under Section 151 CPC to the said extent is
allowed.
28. As far as the other application of the petitioner/MCD for
impleading DJB is concerned, since the counsel for the respondent
No.1/decree holder states that he will be making an application for
CM(M) No.21/2013 Page 8 of 9
amendment of the decree, it is deemed appropriate to allow DJB to be
substituted in place of the petitioner/MCD in Execution Petition
subject to all objections of DJB in this regard and which shall be
considered by the Executing Court.
The petition is disposed of.
RAJIV SAHAI ENDLAW, J.
JULY 21, 2017 'bs/gsr'..
CM(M) No.21/2013 Page 9 of 9