Girls Senior Secondary School Arya Samaj Mandir, Jhajjar Vs. Smt. Rajwanti & Ors
 Insc 262 (8 March 2007)
Dr.AR. Lakshmanan & Altamas Kabir
(Arising out of SLP (C) No.12052/2004) ALTAMAS KABIR, J.
The Respondent No. 1 in this appeal was appointed as Science Mistress in the
Appellant School on 07.09.1988. At the time of joining her duties she was
given an appointment letter on 05.7.1988 indicating that she was being
appointed as Science Mistress in the school with effect from the date she
joined her duties in the grade of Rs. 1400-2600/- plus usual allowances
sanctioned by the Haryana Government from time to time.
On 28.01.1994 the Respondent No. 1 filed a Civil Suit No.
49 of 1994 in the Court of Civil Judge (S.D.) Jhajjar, inter alia, for the
following reliefs :- "It is therefore prayed that this Hon'ble Court may
be pleased to pass a decree of declaration to the effect that the plaintiff is
entitled to the regularization of her services w.e.f. 06.7.1988 with right of contribution
to the contributory Provident Fund from the same date as also to receive her
future salaries by crossed cheques and that she is entitled to all kinds of
leaves and as admissible under the Rules ever since her appointment on
06.7.1988 along with decree of permanent injunction restraining the defendants
from deducting any money from her monthly emoluments on any ground except
through due process of law. Any other relief that the Hon'ble Court deems fit
and proper may also kindly be granted."
The suit was duly contested by the appellant School by filing written
statement and on the pleadings of the parties the following issues were
1. Whether the plaintiff is entitled to regularization of her service with
effect from 06.7.1988 with right of contribution to the contributory Provident
2. Whether the plaintiff is entitled to receive salary by crossed cheque?
3. Whether the plaintiff is entitled to all kind of leaves admissible under
service rules? OPP.
4. Whether the plaintiff has no locus standi to file the present suit? OPD.
5. Whether the suit is not maintainable in the present form? OPD.
6. Whether the plaintiff is estopped from filing the suit by her own act and
7. Whether the plaintiff has concealed material facts from the court, if so
what effect? OPD.
8. Whether the defendants are entitled to special costs under Section 36-A
The suit was ultimately decreed in favour of Respondent No. 1 and the
following decree was passed by the Learned Trial Court:
"It is ordered that suit of plaintiff for declaration with
consequential relief of permanent injunction is hereby decreed with cost by
declaring that plaintiff is entitled to the regularization of her service
06.7.1988 with a right of contributory Provident Fund Scheme and also is
entitled to receive the salary through crossed cheques and further defendants
are hereby restrain from deducting any amount from her monthly emoluments on
any ground except through due process of law."
Since according to the Respondent No. 1 the appellant was not giving effect
to the decree, she put the decree into execution by way of Execution Petition
No. 18 of 1999 for recovery of a sum of Rs. 2,71,436/-. In the execution
petition the Respondent No. 1 stated as under:- "That the suit of the
plaintiff has been decreed by the Hon'ble Court on 15.10.1998 and Hon'ble Court
directed the defendants to make payment of decree holder by cheque and without
deducting any amount as per Government Scale. The plaintiff has submitted the
entire balance of amount due towards defendants on annexure "A" which
is to be read as a part of the execution petition. The amount be recovered from
the movable and immovable property of Respondents which is attached with the
petition. Further action under order 21 Rule 32 of CPC be also initiated
against Respondents No 1 to 4 for not regularizing the service and not giving
benefit of contributory Provident Fund Scheme to petitioner as per decree. The
copy of judgment and decree are attached with the petition."
As will be evident from the claim made by the Respondent No. 1, the amount
calculated by her towards her balance dues on account of salary was on the
basis of the Government Scale which was Rs. 1400-2600/-, as revised from time
It appears that in the execution proceedings the officials of the Education
Department calculated the salary of the Respondent No. 1 from December, 1993 to
February, 2002 in the grade of Rs. 1400-2600/- plus usual allowances as
sanctioned by the Government, to come to a finding that Rs.
6,00,584/- was due and payable to her. Ultimately, by its order dated
28.10.2002 the Executing Court, after giving credit to the appellant for having
paid a sum of Rs.1,70,806/-, directed the appellant to pay the remaining amount
of arrears of salary amounting to Rs. 4,29,778/- to the Respondent No.
1. Inasmuch as, the said order was not given effect to, a further order was
passed by the Executing Court on 28.11.2002 issuing non-bailable warrants of
arrest against the school authorities.
Aggrieved by the order passed by the Executing Court the appellant filed
Civil Revision No. 6130/2002 in the High Court of Punjab and Haryana and the
Learned Single Judge vide order dated 11.08.2003, while admitting the revision,
stayed further proceedings before the Executing Court.
While the revision was pending in the High Court, the Respondent No. 1
herein filed an application to vacate the interim order dated 11.08.2003
staying the execution proceedings. The stay application was taken up for
hearing along with the revision application on 02.04.2004 for final disposal.
On consideration of the submissions made, the Learned Single Judge dismissed
the revision petition with costs of Rs. 5,000/- and directed the Executing
Court to execute the decree forthwith and to complete the execution proceedings
within a period of three months from the date of receipt of a certified copy of
The present appeal is directed against the said order of the Learned Single
Judge dated 02.4.2004.
On behalf of the appellant it was submitted that when the Respondent No. 1
was appointed as Science Mistress in the School, an agreement was entered into
between the School and the said Respondent on 07.9.1988 stipulating the terms
and conditions of her appointment. One of the terms was that her pay scale
would be Rs. 480-760/-. It was urged that the Respondent No. 1 knowingly signed
the said agreement which was made EX. PW4/A in the suit.
It was further submitted that the decree as passed in the suit filed by the
Respondent No. 1 did not specify the salary of the Respondent No. 1 and, in
fact, no specific issue was also framed to decide the quantum of the salary of
the Respondent No. 1. Both the appointment letter issued to the Respondent No.
1 on 05.7.1988 and the agreement dated 07.9.1988 had been brought to the notice
of the Learned Trial Court, but despite the above, the Learned Trial Court had
not specified the salary of the Respondent No. 1 on the basis whereof her dues
were to be calculated.
It was also submitted that as per the agreement, whatever was due to the
Respondent No. 1 had been duly paid and over and above the same a further
amount of approximately Rs. 1,00,000/- had been realised by her by attaching
the bank account of the school. There was, therefore, no further dues payable
to the Respondent No. 1 and the subsequent calculation made by the District
Education authorities had no foundation and the Executing Court erred in
relying on the same.
It was submitted that the Executing Court had travelled beyond its
jurisdiction in directing payment on the basis of the calculation made by the
District Education authorities on the basis that the petitioner's salary was in
the scale of Rs. 1400-2600/-.
In support of his aforesaid contention, Mr. Sanjay Sharawat, Ld. Advocate,
referred to and relied on the decision Dayal Sharma, reported in A.I.R. 1990 SC
2177, wherein this Court had held that when no interest had been claimed in the
suit itself, the grant of such interest by the Executing Court was illegal
since the Executing Court is bound by the terms of the decree and it could not
add to or alter the decree on its notion of fairness or justice.
The same view was taken by this Court in the case of SCC page 684, wherein
in a suit for a mere declaration the Executing Court directed recovery of an
amount which had not been granted by the decree. This Court held that such a
direction given by the Executing Court was beyond its jurisdiction.
Various other decisions were also cited in support of the aforesaid
proposition which merely reiterate the same principle.
On behalf of the Respondent No. 1, it was contended that although her pay
scale had not been specifically mentioned in the prayer portion of the plaint,
since her appointment letter had been exhibited in the suit, all parties
proceeded on the basis that her pay scale was Rs. 1400-2600/- and the decree
was passed accordingly.
It was also submitted that even though in the decree, the pay scale of the
Respondent had not been indicated, all the calculations made by the Authorities
was on the basis that the pay scale of the Respondent was 1400-2600/- and not
Rs. 480-760/- as had been contended by the School authorities.
It was pointed out that, in fact, although no issue had been framed, the Trial
Court had considered the matter and in paragraph 16 of its judgment, it had
come to a finding that the salary of the respondent was not Rs. 480-760/- as
claimed by the School Authorities but Rs. 1400-2600/- as per her appointment
letter (Ex. PW6/B).
It was submitted that in view of such finding, it was obvious that the
decree had been passed by the Ld. Trial Judge on such basis and the Executing
Court was therefore fully justified in directing the arrear payments to be made
on such understanding.
It was submitted that no ground had been made out in the appeal for
interfering with the order passed by the High Court and of the Executing Court.
Having heard the Learned Counsel of the respected parties we are unable to
agree with the reasoning both of the High Court as also the Executing Court
since the decree does not indicate the basis on which the dues of the
Respondent No. 1 was to be calculated. When there were conflicting claims
regarding the salary payable to the Respondent No. 1, the said respondent ought
to have taken steps to amend the prayers in the plaint so that proper relief
could be provided to her. The same not having been done, the Executing Court
had no jurisdiction to go beyond the decree as passed, despite the fact that
the Trial Judge had noticed the dispute and had even decided the same.
As will be evident from the decree extracted hereinabove, the Respondent No.
1 was entitled to regularization of her services with effect from 06.7.1988,
with other consequential relief and was also entitled to receive her salary
through crossed cheques. The Executing Court was required to execute the decree
as made and it had no jurisdiction to widen its scope or to add to it unless a
specific question was raised relating to discharge or satisfaction of the
decree as envisaged in Section 47 of the Code of Civil Procedure.
In our view, the Executing Court appears to have been misled by the
application filed on behalf of the decree-holder Respondent No. 1 on 25.01.1999
indicating that her suit had been decreed by the Court with a direction upon
the School authorities to make payment to her by cheque of her dues as per
Government Scale (emphasis added).
The words "as per Government scale" do not find place in the
decree as passed by the Trial Court and this has resulted in the anomaly with
which we are faced in these proceedings.
The Executing court was required to act within the bounds of the decree and
not travel beyond it or to widen its scope without invocation of the provisions
of Section 47 of the Code of Civil Procedure.
Having regard to the above, we have no option but to allow the appeal filed
by the School authorities. The appeal is accordingly allowed, but we also make
it clear that the Respondent No. 1 may approach the Trial Court for amendment
of the decree in accordance with law.
There will be no order as to costs.