Rajasthan High Court - Jodhpur
Secretary, Bal Vikas Mandal, & Anr vs Om Prakash Bhatia & Ors on 23 May, 2011
Author: A.M.Sapre
Bench: A.M.Sapre
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
D.B. CIVIL SPL. APPEAL (WRIT) NO.393/2010
Secretary, Bal Vikas Mandal, Jaisalmer
VS.
Shri Om Prakash Bhatia & Ors.
Date of Judgment : 23.05.2011
PRESENT
HON'BLE MR.JUSTICE A.M.SAPRE
HON'BLE MR.JUSTICE C.M. TOTLA
Mr. K.C.Samdariya, for the appellant.
Mr. S.D.Purohit, for respondent.
Mr. Hemant Choudhary, G.A.
BY THE COURT: (PER HON'BLE A.M. SAPRE, J)
This is an intra court appeal filed by the writ petitioner of Writ Petition No.2933 of 2007 under Rule 134 of the Rajasthan High Court's Rules against an order dt. 6.5.2010 passed by Single Judge in aforementioned writ petition.
2. In order to appreciate the issue raised in the appeal, it is necessary to state the relevant facts infra.
3. The appellant is an educational Institution. They are running a School in the name of "Gandhi BaL Mandir" at Jaisalmer. It is an aided Institution. The respondent No.1 is working in this School as teacher. Some dispute arose between the appellant and respondent No.1 regarding grant of benefit { 2} of selection scale of pay to the respondent No.1, which according to the respondent No.1, he was entitled to claim from the appellant. Since by two orders viz. 6.1.2001 and 30.1.2001, this benefit was denied to the respondent No.1 by the appellant and hence respondent No.1 filed an appeal under Section 19 of the Rajasthan Non-Government Educational Institute Act, 1989 (for short called the Act) before the appellate Tribunal constituted under the Act against these orders for resolving such dispute.
4. The Tribunal vide order dt 11.11.2002 allowed the appeal filed by the respondent No.1 and set aside the two orders dt 6.1.2002 and 301.2001 impugned by him in his appeal. The appellant though aggrieved by this order did not challenge this order and hence it became final.
5. Since despite the appeal being allowed and the two orders impugned therein having been set aside, no benefit of any nature was being given to the respondent No.1 by the appellant and hence the respondent No.1 (as decree holder) was constrained to file execution application for execution of the said order (11.11.2002) before the Civil Judge (Kanistha Khand) Jaisalmer being execution case No.5/2004 for claiming benefits flowing from such order. The appellant (as judgment debtor) contested this application inter-alia on the ground that firstly the decree holder is not entitled to claim any relief much less relief which he has claimed and secondly the order being in the nature of declaratory one, it has not awarded to him any kind of monetary benefits, which are capable of being recoverable iin execution of such order and lastly the executing court can not go behind the order and grant any fresh relief which was not originally granted to the decree holder by the appellate court.
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6. The learned Civil Judge by order dt 17.4.2007 allowed the application made by respondent No.1 and directed recovery of monetary benefits flowing from the said order for being paid to the respondent No.1 by the appellant. It is against this order, the appellant felt aggrieved and filed writ petition under Article 227 of the Constitution of India out of which this intra court appeal arise. The learned Single Judge by impugned order dismissed the writ petition and in consequence upheld the order passed by the executing court i.e. Civil Court. It is against this order; the writ petitioner has now felt aggrieved and filed this intra court appeal.
7. At the time of hearing of this appeal, one question arose rather one objection in the form of preliminary one was raised by the respondent. The question was as to the remedy available to the appellant to challenge the order dt 17.4.2007 passed by Civil Court as an executing court? Viz. whether the remedy of civil revision under Section 115 of C.P.Code is available to the appellant (writ petitioner /decree holder) or remedy of the writ petition under Article 227 of Constitution of India (which he actually availed of) is the proper remedy?
8. Submission of the learned counsel for the respondent on this objection was that when the order dt 11.11.2002 passed by the appellate Tribunal under the Act is a "deemed decree" by virtue of Section 27-A of the Act and since admittedly the order dt 17.4.2007 was passed by the Civil Court as an executing court on an application made by the Decree Holder under Order 21 of Civil Procedure Code, and hence such order would be revisable under Section 115 of C.P.Code by the High Court. It was contended that all orders passed by Civil Court are either appealable under the C.P.Code to District Judge or to the High Court as the case may be and if { 4} no appeal is provided to challenge any such order then it is made Revisable under Section 115 ibid by the High Court because it is an order passed by the "court", which is subordinate to the High Court within the meaning of Section 115 ibid. It was pointed out that it is only when neither remedy of appeal and nor revision is available to an aggrieved, he can take recourse to filing of writ petition to challenge such order under Article 227 of the Constitution but not when one out of two remedies is available to him. Learned counsel urged that since in this case, the order impugned in the writ petition satisfy the requirements of Section 115 of Code because order passed by the executing court was not in the nature of an interim order but was infect a final order disposing of the lis before the executing court and hence Revision was the only remedy available to the appellant to challenge the order of Civil Judge (executing court) under Section 115 ibid and not by filing the writ petition under Article 227 of the Constitution of India. Learned Counsel, therefore, urged that this court should set aside the impugned order and treating the writ petition to be the Civil Revision under Section 115 ibid, the same should be heard and decided as civil revision under Section 115 ibid on merits in accordance with law.
9. In reply to this submission, learned counsel for the appellant urged that firstly this objection should have been raised by the respondent before the Writ Court and since it was not raised at that time and hence now it should not be allowed to be raised by the respondent in an appeal filed by the writ petitioner for the first time in this appeal. His second submission was that fiction created under Section 27-A of the Act treating the order of the Tribunal to be the deemed decree couldn't be stretched to this extent that the order passed by { 5} the Civil Court would attract the rigour of Civil Procedure Code for determining its forum to challenge in appeal/revision as the case may be. Thirdly according to learned counsel, since the order was passed under the Special Act and hence it is only amenable to writ jurisdiction. It was thus urged that appellant had rightly filed the writ petition under Article 227 ibid for challenging the order of executing court though Writ Court wrongly dismissed on merits and hence this court should now set aside the impugned order and dismiss the execution application by setting aside of the order passed by the executing court (Civil Court).
10. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the preliminary objection raised by the respondent herein and in consequence decline to decide this appeal on the merits of the controversy and remand the case to the court to decide the matter as civil revision under Section 115 of CP Code.
11. In order to decide the aforementioned objection raised by the respondent No.1 two provisions need mention below. These provisions are Section 27-A of the Act and Section 115 of C.P.Code, which read as under:-
"27.A-Execution of orders of Tribunal.- The orders of the tribunal deciding appeals preferred under section 19 and disputes referred to in section 21 shall be deemed to be the decree of the lowest civil court having territorial jurisdiction over the local area in which the respondent/s against whom the order has been made, ordinarily resides or carries on business or personally works for gain and shall be executed as such by such civil court."
"115. Revision.-(1) The High Court may call for the record of any case which has been decided by any Court { 6} subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such oder in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceedings, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High court.
Explanation.-In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in the course of a suit or other proceeding."
12. Mere perusal of Section 27-A would make it amply clear that by virtue of this Section, all orders passed by the appellate Tribunal under the Act in the appeal becomes a decree of Civil Court and thus contains all the attributes of a decree as defined under Section 2(d) of C.P.Code for the purpose of its execution alike a decree passed in any civil suit by the Civil Court. In other words, an order passed by the { 7} Tribunal in any appeal under the Act is a decree for its enforcement as if it is a decree passed by the Civil Court. It is for this reason that a provision of Order 21 of Code and all provisions relating to execution of a decree under the Code are made applicable for execution of such decree.
13. It is pursuant to these provisions; execution application was filed by the decree holder (respondent herein) before the competent Civil Court of lowest jurisdiction for its execution against the appellant and indeed rightly. Any order passed by the Civil Court while disposing of such execution application is always subject to supervision of High Court either in Appeal or Revision under Code because Civil Court is a "Court" "subordinate to the High Court".
14. So far as nature of order dt 17.4.2007 passed by Civil Court is concerned, we are of the considered view that it was an order passed by the Civil Court on an application of the decree holder made under Order 21 of the Code by which his execution application stood finally disposed of. Such order not being appelable under the Code was thus revisable under Section 115 of the Code because it satisfied all the attributes to attract the provisions of Section 115 ibid. In other words, the revision would not lie in a case, where if allowed would not result in disposal of lis finally. In this case, the proviso to Section 115 ibid did not apply because it would not result in revival of any proceedings.
15. In the light of this legal position emerging from the case, in our opinion, the writ petition filed by the appellant under Article 227 of the Constitution of India out of which this appeal arises could not have been entertained on its merits due to availability of alternative and statutory remedy of Revision under Section 115 ibid to the appellant and hence the { 8} writ petition should should have been dismissed on this ground or should have been allowed to be converted into the civil revision under Section 115 of Code for it disposal on merits as such.
16. We are not impressed by the submission of the learned counsel for the appellant when he contended that since the deeming fiction created by the Act was confined to only the order in question and not beyond it for deciding further forum.
17. The submission has a fallacy. The very fact that the appellant filed an execution application before the Civil Court under the code treating the order of Tribunal to be a decree, it logically followed that all legal consequences provided in law including the further remedy provided in law got attracted. In order to decide as to what were those remedies available to an aggrieved against such order, one had to see as to which court has passed the order, what was its nature and under what provision of law, it was passed and then decide in the context of relevant provisions relating to appeal or/and revision under the code as to whether it attracts appellate provision or a provision relating to filing of revision. In this case, provisions relating to revision was attracted and not the appellate one due to nature of the order and the proceedings in which it was passed.
18. We have taken note of the decisions relied on by the learned counsel for the appellant reported in AIR 1998 SC 743 and 2009(2) SCW 1655. Having gone through we find that both are distinguishable on facts and can be of no help to appellant. We thus do not consider it proper to deal with them more elaborately.
19. As a result of foregoing discussion, the objection { 9} of the respondent is sustained. Since the objection relates to very jurisdiction of the case and goes to its root, the impugned order cannot sustain due to its upholding. As a consequence thereof, the appeal succeed and is allowed. Impugned order is set aside. The writ petition filed by the appellant (Judgment Debtor) is restored to its file. The writ petition be now converted into a civil revision under Section 115 of C.P.Code. The necessary amendment be now made in the record of the case. The registry to register the writ petition as civil revision by allotting to it a new number in the register of civil revision. It be then placed for final hearing before the Bench hearing civil revision in accordance with law.
( C.M. TOTLA),J. ( A. M. SAPRE ),J. /tarun/