MANAGING DIRECTOR, J&K TOURISM Vs. GH MOHD BHAT

JUDGEMENT

(1.) THIS revision is directed against the order of First Addl. Munsiff, Srinagar, dated 13 -5 -1984. The trial court has held that the decree passed against the petitioner herein is executable as it is not a decree purely of a declaratory nature. The lower court has held that there is a further relief prayed for in the plaint which the trial court has granted - Hence the decree is executable. Learned counsel for the petitioner Mr. Mufti Mehraj -ud -Din has argued before me that the decree being purely declaratory is not executable and has referred me to an authority of this court Viz : B. K. Thapar and ors. Vs. Sudhir Kumar and ors, AIR 1966 J&K 13 in which it has been held that a decree which is declaratory in nature would not be executable under any of the provisions of the Civil Pr. Code. I have perused the plaint as also the Judgment of the trial court which were produced before me by the learned counsel for the petitioner. From the perusal of the plaint it appears that the respondents had brought a suit before the trial court for setting aside the termination of their services, which was termed by them as illegal termination, and had demanded further relief by claiming emoluments attached to their posts, so declaration was in respect of the illegal termination of the services and further relief about the payment of emoluments which would flow from the first relief. In this view of the matter, the decree passed by the trial court was not purely a declaratory decree in nature but had granted the relief of declaration as regards illegal termination and had also granted further relief of payment of wages etc. Such a decree in exeutable under 21 Rule 32 of the Code of Civil Procedure. That Rules provides that if a Judgment debtor willfully disobeys a decree of the court, the executing court can issue process against the judgment -debtor and get the decree executed at his cost.

(2.) CIVIL Pr: Code was amended by an Act No: XI of 1983. A new section was added which is Section 99A, which reads as under: "99A, No order under section 47 to be reserved, modified unless decision of case the is prejudicially affected. Without prejudice to the generality of the provisions of section 99. No order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case." From the perusal of this section, it is clear that orders passed V/S 47 of the Code of Civil Procedure cannot be reversed, or modified unless the decision of the case is prejudicially affected. Sec 99 A - C. P. C. lays down that no order u/s 47 shall be reversed or substantially varied On account of any error, defect or irregularity in any proceeding relating to such an order unless such error, defect or irregularity has prejudicially affected the decision of the case.

(3.) THE suit before the trial court was for declaration and for further relief, therefore any valuation could have been put by the plaintiff on it for purposes of jurisdiction and court -fee. That is permissible u/s 7(IV)(c) of the Court -fees Act. Therefore, there was no defect of jurisdiction also. The court passing the decree had the inherent jurisdiction as also the pecuniary and territorial jurisdiction to pass the decree. Therefore, the decree passed by the trial court was executable and could not be held to un -executable as it was a decree which embodied further relief in favour of the decree -holder. It was not a decree purely of a declaratory nature. Therefore, the authority relied on by the learned counsel for the petitioner viz: 1966 J&k 13(supra) is distinguishable and cannot apply to the facts of the present case. I therefore, hold that the decree passed by the trial court, which is before 1st Addl. Munsiff Srinagar, for execution, is executable and the court below had rightly held that the said decree is executable. There is no justification for interfering with the order of the lower court, which is impugned in this petition.