MUNICIPAL COMMITTEE, NABHA Vs. PADAM KUMAR

JUDGEMENT

(1.) BRIEFLY the facts are that Padam Kumar Petitioner filed a suit against the Municipal Committee, Nabha for a declaration that he, as a senior employee of the Defendant committee, was entitled to grade promotion to the post of either Sub Inspector of Octroi or Sanitary Inspector or Head Clerk or Cashier or Account or Meter Clerk or Tehbazari Clerk or Rent Collector or House -tax Inspector. The suit was decreed on 11th March, 1970 by the Subordinate Judge, Nabha The Committee filed an appeal against the judgment and decree of the trial Court before the District Judge, Patiala through the Executive Officer. A preliminary objection was raised in the appeal by the Plaintiff that it had not been filed by a properly authorised person as no resolution of the Municipal Committee authorising the Executive Officer to file the appeal had been produced. The objection was upheld by the District Judge and the appeal was dismissed on this ground on 16th March, 1971.

(2.) THE decree holder thereafter filed an execution application in the executing Court. In that petition a statement was made by the counsel for the judgment debtor on 9th December, 1971 that the decree holder had been posted as a Cashier. In view of that statement, the Court dismissed the execution application as fully satisfied on that day. The decree holder filed the present execution petition on 22nd January, 1983 stating that he has not been granted the relief by the Committee in accordance with the decree

(3.) THE first question that arises for determination is whether the execution application is within time. It is not disputed that if the limitation for execution is reckoned from the date of judgment of the trial Court, the execution application is not within time but if the date is reckoned from the date of judgment of the appellate Court, it is within time It is therefore, to be seen in the present case whether the limitation is to be reckoned from the judgment of the trial Court or that of the appellate Court. Admittedly the appeal was dismissed on the ground that it was not filed by a properly authorised person Under Order 41, Rule 1 of the Code it is required to be presented by the Appellant or his authorised agent if it is not filed by such a person, it is no appeal in the eye of law and cannot be deemed to have been entertained by the appellate Court. The order by which the appeal stands disposed of amounts to an order of rejection of the memorandum of appeal and does not amount to a decree