Punjab State & Others Vs. Harvinder Singh [2008] Insc 267 (22 February 2008)
S.B.
Sinha & V.S. Sirpurkar
I.A.
NO.1 OF 2007 IN CIVIL APPEAL NO.6421 OF 2003 V.S. SIRPURKAR,J.
1.
This is an Interlocutory Application in Civil Appeal No.6421 of 2003 which was
earlier disposed of by this Court consisting of Justice S. Rajendra Babu (As
His Lordship then was) and Justice G.P. Mathur. This Court passed the following
order in that appeal which was filed by the State of Punjab:
"Leave
granted
In the
light of decision of this Court in Rameshwar Dass Gupta vs. State of U.P. &
Anr. [(1996) 5 SCC 728], order made by the Executing Court granting interest
shall stand deleted and in other respects the order made by the Executing
Court, as affirmed by the High Court is maintained. The appeal is disposed of
accordingly."
This
appeal was filed against the order of the Punjab and Haryana High Court,
wherein the High Court in its revisional jurisdiction had dismissed the
revision filed by the State and its three other officers against the order
passed by the Civil Judge (Junior Division), Ludhiana. By its order the Trial
Court had allowed the application filed by the applicant herein, Harvinder
Singh. In his application, which was filed during the execution, the applicant
had pointed out that the net amount due to him as a decree- holder was
Rs.4550/- and he was also entitled to the interest from the date of decree till
the amount was paid. Learned Trial Judge observed that the decree was passed on
27.11.1990 but there was no mention of interest in the relief clause. The Trial
Court relied on a decision reported in State of Punjab v. Radha Ram & Ors
[1990 (2) SLR 588] and held on the basis thereof that the executing court had
power to award interest from the date of decree till the amount is realized,
though there is no such mention of interest in the decree. In the result the
Trial Court awarded 12% interest from the date of decree till the date of
realization. Thus the execution application was allowed.
2. As
has been stated earlier, the Revision Petition against this order was dismissed
in limine by the Punjab and Haryana High Court.
3.
When the matter came up before this Court at the instance of the State and its
three other officers, the same was disposed by the order which we have quoted
above. The applicant herein, therefore, filed the present application on the
ground that before passing the order no reasonable opportunity was given to the
applicant-respondent of being heard and the order was not correct as there were
other arguable points in connection with the interest on the arrears. It was
stated that though the applicant was respondent in Civil Appeal No.6421 of
2003, he did not/could not appear on account of certain illness. It is on this
basis that the aforementioned order dated 14.8.2003, passed by this Court, came
to be assailed. A notice was issued to the State Government on the application
and the parties were heard by us.
4. The
applicant-respondent argued himself and contended before us that on some
earlier occasions this Court had granted interest during the execution. Some
orders have been filed before us by the applicant- respondent, passed by this
Court in CMP No.270 of 1979 dated 6.2.1979 (Krishna Murari Lal Sehgal vs. State
of Punjab), CMP Nos.19534-35 of 1981 in CA Nos.1298-99 of 1969 dated 9.11.1981
(Krishna Murari Lal Sehgal vs. State of Punjab) as also the orders passed in
CMP No.36232 of 1983 in Civil Appeal No.1390 of 1978 dated 13.9.1984 (Baldev Raj
Chadha vs. Union of India & Ors.), in support of the contention that the
interest can be granted by the executing court even if the decree does not
suggest grant of any interest. We have carefully seen all the orders. None of
the orders is applicable to the controversy involved regarding the interest. It
cannot be said from any of the orders that this Court had taken a view that the
interest can be so granted by the executing court even if the same has not been
granted by the court passing the decree. On the other hand it has been held by
this Court in Rameshwar Dass Gupta v. State of U.P. & Anr. [(1996) 5 SCC
728] that such grant of interest is not possible. The Court observed:
"It
is a well settled legal position that an executing court cannot travel beyond
the order or decree under execution. It gets jurisdiction only to execute the
order in accordance with the procedure laid down under Order 21 CPC. In view of
the fact that it is a money claim, what was to be computed is the arrears of
the salary, gratuity and pension after computation of his promotional benefits
in accordance with the service law.
That
having been done and the court having decided the entitlement of the
decree-holder in a sum of Rs.1,97,000/- and odd, the question that arises is
whether the executing court could step out and grant a decree for interest
which was not part of the decree for execution on the ground of delay in
payment or for unreasonable stand taken in execution? In our view, the
executing court has exceeded its jurisdiction and the order is one without
jurisdiction and is thereby a void order."
5. Our
attention was invited to the Trial Court judgment wherein reliance was placed
on the reported decision of Punjab and Haryana
High Court in The State of Punjab v. Radha Ram & Anr. [1990 (2) SLR 588.
In
this case a learned Single Judge of the Punjab and Haryana High Court has taken a view that even if the decree is
silent upon the interest, the executing court can grant it in case of money
claims. In this case the learned Single Judge had relied on the decision of the
Full Bench between the parties in Radha Ram v. Municipal Committee, Barnala
[1983 PLR 21]. Three paragraphs are quoted from that decision. All the three
paragraphs only pertain to the right of a person, whose termination had been
set aside, to get the arrears of salary and allowance. From the three
paragraphs atleast it does not seem that the Full Bench had, in any manner,
held that even where there is no interest granted in the decree, still the
executing court would have the power to grant the interest.
However,
the learned Single Judge, after quoting the three paragraphs in para 6 observed
that the executing court, while calculating the relief of past emoluments would
have the powers under Section 34 of the Code of Civil Procedure, 1973 and would
be in a position to grant interest. In our opinion this cannot be a correct
reading of the Full Bench Judgment or even the judgment in Krishan Murari Lal Sehgal
v. State of Punjab [AIR 1977 SC 1233] which was relied
upon by the Full Bench of Punjab and Haryana High Court. From the three
paragraphs quoted above in the judgment it has been held by the Full Bench
that:
"Once
the relief for quashing the order of termination has been granted, or a
declaratory decree has been passed to the similar effect, it necessarily follow
that the employee in the eye of law continues to be in service and as a
necessary consequences thereof would be entitled to all the emoluments flowing
from that status."
We
have also seen the aforementioned judgment in Krishna Murari Lal's case (supra)
which is also indirectly relied upon by the learned Single Judge. We do not
find any such proposition in that judgment. From this it is clear that the
Trial Court, though was justified in relying upon the aforementioned judgment
of the learned Single Judge of the Punjab and Haryana High Court, that judgment itself does not give out the
correct law.
In
that view, the Trial Court's order was patently incorrect and the order of the
High Court confirming the same in the Revision was also incorrect and it is for
this reason that this Court by its order dated 14.8.2003 set aside that order.
6. It
is contended in this application that the applicant-respondent herein did not
or could not remain present at the time of hearing due to illness. However,
since a complaint was made that he was not heard and the judgment was passed
behind his back that we heard the applicant- respondent in detail. In our
opinion, it is not necessary for us to review the order already passed by this
Court on 14.8.2003 and we maintain that order.
7. In
view of the above the Interlocutory Application filed by the
applicant-respondent is dismissed. However, since the applicant- respondent has
appeared in person, there will be no order as to costs.
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