MURLI DHAR MISRA Vs. STATE

JUDGEMENT

(1.) THIS is an execution second appeal arising from the proceedings for execution of the decree in suit No. 315 of 1967 of the court of the Munsif City, Varanasi. The Plaintiff is the Appellant. The decree declares the order terminating the Plaintiff's services dated 13th January, 1966 to be ultra vires, illegal and ineffective and that he continued to be in service of the Respondent State. A sum of Rs. 2446,21 was also decreed in his favour as arrears of salary and other allowances upto the date of the suit. The Appellant sought to recover pendente lite and future salary also. The Respondent State objected under Section 47 of the Code of Civil Procedure. The objection was allowed by the Executing Court and the Plaintiff's appeal therefrom was also dismissed by the court of the District Judge, Varanasi on 19th April, 1973. The present appeal is directed against that judgment. The Respondent State had in the meanwhile appealed from the decree in the original suit. That was Second Appeal No. 2223 of 1971 in this Court. It was allowed by this Court on 11th September, 1974 and the matter was remanded to the lower appellate court. Simultaneously it was ordered that the present execution second appeal be kept pending and heard after the decision of the appeal from the original decree remanded as aforesaid to the lower appellate court, along with the second appeal, if any filed therefrom or after the expiry of the limitation for preferring a second appeal therefrom.

(2.) THE appeal remanded as aforesaid stood transferred to the U.P. Public Services Tribunal under Section 6 of the U.P. Public Services (Tribunal) Act, 1976. That became Reference No. 1283 of 1976 before the U.P. Public Services Tribunal (I), Lucknow and was dismissed by an order dated 24th October, 1977. A certified copy of it has been filed in this Court with an application, which was allowed by me, and has been admitted in evidence in the present execution second appeal.

(3.) IN the result, the appeal succeeds and is allowed and the execution proceedings pending in the trial court are quashed for having become infructuous. The Plaintiff -appellant will be entitled to the refund of the court fees tendered by him for the recovery of the pendente lite and future salary and allowances in the executing court. The parties shall bear their own costs throughout.