JAGMAL Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the order dated 19.8.2006 passed by the learned Executing Court, as affirmed by the learned appellate court vide order dated 22.7.2009, vide which the execution application moved by the petitioner stands dismissed. The petitioner was enrolled in Indian Army in Rajasthan Rifles on 6.6.1946 and was discharged from service on 5.6.1961. Reason for CR No.6790 of 2009 2 discharge was 40 per cent disability on account of nature of duties entrusted to him while serving in the Army. The petitioner was not allowed the benefit of disability pension. The petitioner challenged the orders dated 17.9.1983/22.9.983 and 20.10.1985 rejecting his claim for grant of disability pension in the civil court. The civil suit filed by him was decreed on 9.12.1992. The decree passed in favour of the petitioner reads as under:- " It is ordered that suit of the plaintiff succeeds and it is decreed with the declaration to the effect that order of defendants dated 17/9/1983, 22/9/1983 and 22.10.1985 are illegal, void and not binding upon the right of the plaintiff and the same are hereby set aside. It is also declared that plaintiff is entitled for all the disability pensionary benefits becoming due to him on account of his military service w.e.f. 24.10.1984 which is to be assessed by the competent authority as per rules of the army pension act, however, parties are left to bear their own costs."

(2.) The petitioner, thereafter sought execution of decree, which was dismissed as certain amount was paid. Thereafter the petitioner filed another execution application which was dismissed by the learned executing court by way of impugned order which reads as under:- " Warrant of attachment were issued as per list of calculation filed on behalf of decree holder. However, from perusal of case file, it has come into my notice suit was decreed vide order dated 9.12.1992 with the observation that decree CR No.6790 of 2009 3 holder is entitled to all the disability pensionary benefits becoming due to him on account of his military service w.e.f. 4.10.1984 which is to be assessed by the competent authority as per rule of the army pension Act. JD had also appeared before the court and filed objections on 6.12.2003 with the averments that disability element of pension is not a regular pension, however, it is a causality ward/compensation for any disability caused during the performance of duties in military service and not otherwise. According to rule Chief Controller of Defence Accounts (Pension) Allahabad is the competent pension sanctioning authority of disability element of pension for 20% for disability to the plaintiff for the period from 24 October 1984 to 23 October 1986. However, in terms of Rule 173 of Pension Regulations Part I (1961) and Army order 417/74 which governs the procedure for grant of disability pension in the Army. In terms regulations 2 (ii) of Pension Regulation for the Army Part II (1961), the provision one has to undergo resurvey medical board about four months prior to the date of expiry of the current award of disability pension. Since, decree holder refused for undergoing resurvey medical board, payment of disability element of pension was stopped w.e.f. 24 October 1986 in the absence of fresh resurvey medical board as the instructions contained in regulations 56 of pension. Regulation Part I. JD department has duly complied with the decree dated CR No.6790 of 2009 4 9.12.1992 by paying all disability pensionary benefits and nothing left pending be paid against department. It is matter of fact that earlier also decree holder had filed execution petition in the year 1993. But this fact has not been disclosed in this the year 1993 But this fact has not been disclosed in this execution petition. Moreso, he again filed execution petition dated 15 January 2001 against JDs which is still pending. However, decree holder has now again filed this execution petition despite duly complied with the JDs department. This act and conduct on behalf of decree holder is apparently abused of process of law because of the reason that JD has to release disability pension as per rules in compliance of decree dated 9.12.1992. It is not understandable as to why DH again filed the present execution petition on the basis of decree dated 9.12.1992. This act does not show that as to how DH is misusing the abuse of law. Since JDs department has duly complied with decree as per rule. Therefore, I find no justification to proceed further with the present execution petition. Resultantly, execution petition stands dismissed being duly complied with the JDs department. File after due compliance be consigned to the record room."

(3.) The petitioner preferred an appeal. Appeal was also dismissed. Learned counsel for the petitioner has challenged the impugned order primarily on the ground that the judgment and decree was passed by CR No.6790 of 2009 5 the learned Civil Judge on 9.12.1992. No objection, that the petitioner was liable to undergo resurvey medical board was taken in the suit and in the decree it is specifically mentioned that the petitioner was entitled to disability pension w.e.f. 24.10.1984 without mentioning the date as to when this would cease to be operative. There was no justification with the judgment debtor to the pension w.e.f. 24.10.1986, for want of resurvey medical board specifically when he was not asked to undergo the resurvey medical board after passing of the decree.