KONAL SUBHAMANI Vs. GOVERNMENT OF ANDHRA PRADESH

JUDGEMENT

(1.) The contesting respondent, Sri Lakshmi Committee Aided Management School, Kothapeta, Bhadrachalam laid O.S. No. 10/81 on the file of the Agent to the Government at Khammam for a perpetual injunction. I.A. No. 25/81 was filed for an interim injunction. The interim injunction was granted and was made absolute by an order dated March 18, 1983. This order was passed under Rule 42 (a) of the Andhra Pradesh Agency Rule issued under Section 6 of the Scheduled Districts Act, 1874. Against the said order there is no appeal provided to the appellate forum. Therefore, the petitioner being aggrieved against the order of injunction made an application to the Government under Rule 59 for reference to this court. Since it was not referred, the petitioner filed this writ petition seeking a direction to the Government to refer the case to this court. It is not necessary to go into the merits in the matter.

(2.) Sri M.R.K. Chowdary the learned counsel for the contesting respondent has contended that it is a decree within the meaning of Rule 49 read with Rule 1 of the Rules and that, therefore, an appeal shall lie to the High Court. It is open to the petitioner to file an appeal. I find no force in this contention. Rule 49 postulates that from every original decree passed by the Agent to the State Government an appeal shall lie to the High Court. Rule 1 states that 'Decree' shall include orders passed under Rules 39 (l) and 43(3) but not orders under Rules 33 and 35. Rule 39 (1) speaks of all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit. Therefore, if any questions have arisen after the decree is passed either between the parties or the representatives relating to the execution or discharge or satisfactions of the decree, such questions shall be determined by the executing court. If such a decree is made it shall be a decree within the meaning of Rule 1 and that therefore, an appeal shall lie under Rule 49. In this case Rule 39 (1) has no application because there is no decree as yet passed. Rule 43 (3) provides that where a receiver. (a) fails to submit his accounts at such periods and in such form as the Court directs, or (b) fails to pay the amount due from his as the Court directs, or (e) occasions loss to the property by his wilful default or gross negligence, the court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay the balance (if any) to the receiver. This rule also is inapplicable because it is not an appointment of a receiver and his failure to submit his accounts etc. Under these circumstances it cannot be said that it is a decree within the meaning of clause (1). It is next contended that it is the Agent that has to make a reference to the State Government and not the State Government to make a reference to the High Court. He places reliance under Rule 60. This rule has no application because it postulates thus :

(3.) Accordingly I direct the State Government to make a reference to this court under Rule 59 within 3 months from the date of receipt of this order on the representation filed by the petitioner dated September 2, 1985 sent by Registered post with acknowledgment due, the acknowledgment of which has been placed before me.