STATE OF MANIPUR Vs. SHRI SADHAN JIBON SINGH

JUDGEMENT

(1.) The order dated 5.4.1997 passed by the Civil Judge (Senior Division) No. 1, Manipur East, in Execution Case No. 41/1990 (Ref. O.S. No. 31/1984) is the subject matter under challenge in this revision petition under Section 115 read with Sec. 151 of C.P.C.

(2.) The facts of the case in a short compass are as follows : The Plaintiff/Decree holder (respondent herein) which is hereinafter referred to as "Decree-holder" obtained a decree from the Court below in Original Suit No. 31/1984 to the effect that his date of birth is 1.3.1937 and the entry in his service book that he was born on 1.3.1927 is wrong and illegal and the decree- holder is entitled to receive his pay and allowances from 1.3.1985 till he attains the age of superannuation counting from 1.3.1937 including increments and other benefits and that the related order dated 27.2.1985 for retirement of the decree-holder with effect from 1.3.1985 is null and void. Accordingly, the decree-holder sought for execution of the said decree under Execution Case No. 41/1990. On objection of the judgment-debtors/defendants (petitioners herein), which is hereinafter referred to as "judgment-debtors" the Executing Court dismissed the execution petition by holding inter-alia that the decree in question is only a declaratory decree. Being dissatisfied with the order of dismissal of the said execution petition, the decree-holder had challenged the validity of the said order under Civil Revision No. 60/ 1991 before this Court. This Court by its judgment and order dated 14.3.1996 set aside the order of dismissal dated 29.6.1991 and remanded the said Execution Case No. 41/1990 to the Court below with a direction that the learned Court below shall allow the decree- holder to make an application for converting the instant Execution Case into a suit ; and that the Court below shall make an inquiry to ascertain the total amount of claim of the decree- holder by affording the parties the opportunity of being heard and the decree-holder on putting in the ad-valorem Court fees on his claim can pray for execution of the decree. The decree-holder, thereafter filed an application before the Court below on 18.5.1996, as per the judgment and order dated 14.3.1996, for ascertaining the amount of pay and allowances payable to the decree-holder so that he could make payment of necessary court-fees and draw the amount through the Court below. The said application was resisted by the judgment-debtors by filing written objection. The decree-holder also filed rejoinder to the Written Objection of. the judgment-debtors. Another application under Order 26 Rule 9 of C.P.C. was also filed by the decree-holder for issue of a Commission for ascertaining the total amount of claim which could be recovered by the decree-holder from the judgment-debtors in terms of the decree. After hearing the parties the learned Court below passed an order on 3.3.1997 in Execution Case No. 41 /90 directing the judgment-debtors to pay a sum of Rs. 3,08,902.40P. for which the. decree-holder has paid necessary Court fees. Lastly, the learned Court below issued notice to the judgment-debtors to show cause as to why they should not be detained in civil prison for non-payment of the decretal amount. The learned Court below also issued a writ for attachment of the Cars (Ambassadors bearing registration No. WB-02/7213 and No. MN-IG/ 0701) by an order dated 5.4.1997. Being aggrieved by this order dated 5.4.1997 passed in Execution Case No. 41/90 the judgment-debtors filed this revision petition.

(3.) Sri A. Nilamani Singh, learned Sr. counsel for the petitioners/judgment-debtors, at the very outset contended that the decree is a declaratory one and as such no execution thereof is called for ; and the judgment-debtors had no means to pay the decretal amount and as such no arrest and detention of the judgment-debtors can be made ; and that there is no specific relief claimed by the decree-holder in his plaint in the suit for a money decree ordering the judgment-debtors to pay the salaries of the decree-holder; and that determination of the quantum of amount, or in other words the amount of pay and allowances of the decree-holder for the period from 1.3.1985 to 28.2.1995 in the present case, is the exclusive function of the trial Court and not of the Executing Court within the scope of Order 20 Rule 12 of C.P.C. so as to make it after determination a part of the final decree. According to Sri A. Nilamani Singh, learned Sr. counsel for the petitioners/judgment-debtors, the learned Court below passed the impugned order in a complete defiance of tine judgment and order dated 14.3.1996 passed by this Court in Civil Revision No. 60/1991. There cannot be a decree for execution of the same without converting the Execution case to a suit and that the Executing Court cannot pass a decree in the execution proceeding without converting the same to a suit as per judgment and order dated 14.3.1996 passed by this Court, Sri A. Nilamani Singh, learned Sr. Counsel contended. It is also submitted by the learned Senior Counsel for the petitioners/judgment-debtors that the objection raised in the execution proceeding was not properly considered and disposed of by the Executing Court while passing the impugned order, and as such, the impugned order is liable to be set aside. At the hearing Sri L. Nandakumar Singh, learned Sr. Counsel for the respondent/decree-holder contended that the suit was filed before the decree-holder retired from his services and that the decree-holder claimed the maximum relief which he could make it at the relevant time in his original suit. He also submitted that despite the injunction order passed by the trial Court the judgment-debtors did not comply with the injunction order ; thus causing a great injustice to the decree-holder. According to Sri L. Nandakumar Singh, learned Sr. Counsel for the decree-holder, the question of executability of the decree cannot be questioned in the instant case inasmuch as the matter has been finally adjudicated upon and contested by the trial Court in the matter directly and substantially in issue and as such, the contention of the judgment debtors is barred by the principles of constructive res-judicata. The learned Sr. counsel for the decree-holder, further submitted that another matter which might and ought to have been made as the ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in the subsequent suit as contemplated under explanation IV of Section 11 of C.P.C. Necessary ad-valorem Court fees on the claim of the decree-holder has been paid ; an appropriate enquiry for ascertaining the total amount of claim of decree-holder has been made, and the application was also filed by the decree-holder as per direction and order of this Court made in Civil Revision No. 60 of 1991, Sri Nandakumar Singh, learned Sr. Counsel for the decree-holder/Respondent herein contended. According to the decree-holder, there is no infirmity in the impugned order of 5.4.1997 passed by the learned Court below in Execution Case No. 41/90. Sri A. Nilamani Singh, learned Sr. Counsel for the petitioner/judgment-debtors also contended that the word "suit" denotes whole of the suit and not a part of it or material issue arising in it. Relying on the decision of the Apex Court reported in AIR 1962 S.C. 214 (Mst. Gulab Bai and others - appellants -Vs- Manphool Bai - respondent) and also the decision of the Punjab High Court reported in AIR 1967 Punjab 369 (Municipal Committee, Tarn Taran - petitioner -Vs- State of Punjab & Ors. - Respondents), he contended that the word "suit" is a term of art and ordinarily means a proceeding instituted in a Civil Court by the presentation of the plaint. Citing a number of decisions of the Apex Court reported in (1992)3 SCC 159, (1994)4 SCC 370, (1996) 4 SCC 178, AIR 1966 SC 1418 and AIR 1973 SC 2077, Sri A.Nilamani, learned Sr. Counsel for the petitioners/ judgment-debtors argued that no executing Court can go behind the decree ; the decree which is a nullity or non-est can be challenged even in execution stage or in collateral proceedings ; the question of jurisdiction is to be decided first before entering into the merits of the case and that if relief is to be obtained only by following certain procedure laid down therefor, that procedure must be followed if the party is to obtain that relief. Giving reliance upon these principles of law, Sri A. Nilamani further contended that as the decree-holder had failed to file an application for converting the instant Execution case into a suit, the learned Court below had mo occasion to dispose of such a suit in accordance with law. The contention of Sri L, Nandakumar Singh, learned Sr. Counsel for the Respondent/decree-holder, is that as per judgment and order dated 14.3.1996 passed by this Court in Civil Revision No. 60/1991 the decree-holder filed an application and the said application was duly disposed of by the learned Court below in accordance with law. Sri L. Nandakumar Singh expressed the difficulty of the decree-holder after obtaining the said decree. Supporting his submission on this aspect, he drew my attention to a decision rendered in the General Manager of the Raj Durbhunga under of the Count of Wards - Appellant -Vs- Maharajah Coomar Ramaput Singh - Respondents reported in Moore's Indian Appeals Vol. 14 -1871-2, Page 605, wherein Their Lordships observed as follows : "These proceedings certainly illustrate what was said by Mr. Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree."