BHAWANI SHANKAR Vs. MAHARASHTRA SHISHAN PRASARK MANDAL

JUDGEMENT

(1.) Being aggrieved by the order dated 10.10.2012 passed by XX Civil Judge Class-II, Indore in Execution Case No. 156-A/2009, whereby petition filed by respondents No. 1 and 2 under section 47 of CPC, was allowed and the execution proceedings filed by the petitioner was dismissed, present petition has been filed. Short facts of the case are that petitioner filed a suit for declaration and permanent injunction alleging that the petitioner was appointed as Gardener/Watchman by the respondents No. 1 and 2 vide order dated 23.7.1988. It was alleged that the petitioner was discontinued illegally w.e.f. 16.1.1991. In the suit it was prayed that petitioner be reinstated on the post from which the petitioner was removed and back wages be awarded to the petitioner w.e.f. 27th of July, 1990. The suit was contested by the respondents No. 1 and 2 on various grounds. After framing of issues and recording of evidence, learned Trial Court decreed the suit vide judgment and decree dated 31.1.2007, by passing a decree in lavour of petitioner to the effect that domestic inquiry against the petitioner is against the principle of natural justice. It was also held that petitioner is posted as Gardener (Bhratya) and is entitled for all the benefits as per rules. Against the judgment and decree passed by learned Trial Court, an appeal was filed by the respondents No. 1 and 2 which was numbered as Civil Appeal No. 17/2007, in the Court of XX Additional District Judge, Indore, and was dismissed vide judgment dated 16.1.1991, against which Second Appeal was filed by the respondents No. 1 and 2 which was numbered as SA No. 150/2009 and was dismissed vide order dated 3.12.2010. Thus, the judgment passed by learned Trial Court attained finality. Thereafter execution petition was filed by the petitioner wherein it was prayed that respondents No. 1 and 2 be directed to pay a sum of Rs. 7,00,000/-, w.e.f. 16.1.1991 till the date of filing of execution petition @ Rs. 6,000/- per 'month. In the said execution petition, objections were filed by respondents No. 1 and 2 under section 47 of CPC alleging that since the decree which is in favour of the petitioner is only a declaratory decree therefore, the same is not maintainable and no direction can be given against the respondents No. 1 and 2 for recovery of money.

(2.) After hearing the parties and the objections filed by the respondents No. 1 and 2, learned Trial Court allowed the application filed by the respondents No. 1 and 2 and dismissed the execution petition filed by tike petitioner, against which present petition has been filed.

(3.) Preliminary objection has been raised by the respondents No. 1 and 2 to the effect that writ petition is not maintainable and it is only revision petition under section 115 of CPC is maintainable. Reliance is placed by the learned Counsel for the respondents No. 1 and 2 on a decision in the matter, of Sadhana Lodh v. National Insurance Co. Ltd., 2003 AIR(SCW) 930 wherein Hon'ble Apex Court held that cases where remedy of appeal not provided for against orders/judgments of District Judge, the remedy to file revision under section 115 CPC and cases where remedy of revision is expressly barred by State enactment in such case a writ petition would lie. Learned Counsel further placed reliance on a decision in the matter of Parkash Chand v. S.S. Grewal, 1975 CrLJ 679 wherein in a case of dismissal of public servant Full Bench of Punjab & Haryana High Court held that decree of Civil Court declaring order of dismissal as void and treating him to be still in service, decree to be construed as enjoining upon Government to reinstate decree-holder and grant him all benefits and privileges.