Darshan Singh Vs. State of Punjab  Insc 124 (13 February 2007)
Dr. AR. Lakshmanan & Altamas Kabir
[Arising out of SLP(C) No. 20477 of 2005] Dr. AR. LAKSHMANAN, J.
The present appeal is directed against the judgment and order dated 8.4.2005
passed by the High Court of Punjab and Haryana in Civil Revision No. 2569 of
1996 whereby the High Court allowed the Civil Revision filed by the
respondent-State of Punjab. The appellant joined the PWD Department of State of
Punjab as Clerk on 2.2.1953. He was promoted as a Sub-Divisional Clerk in the
year 1957 and thereafter as Accounts Clerk in April 1965.
A case of embezzlement and misappropriation of Government funds was made
against him and the department filed an appeal against the Respondent and he
was put under suspension vide office order No.
57/E dated 24.5.1965. A criminal case was initiated against the Appellant
which ultimately resulted in the acquittal of the Appellant vide judgment and
order dated 9.8.1973 passed by the Additional Sessions Judge, Amritsar. No
departmental action was taken against the Appellant and he was merely kept
under suspension. The Appellant was reinstated vide order dated 12.4.1978 and
it was ordered that period of his suspension be treated on duty for all intents
and purposes. The Appellant was given proforma promotion as Officiating Head
24.9.1972 vide office order No. 55/E dated 27.4.1978. The Appellant retired
after attaining the age of superannuation as Superintendent Grade-IV on
The Appellant filed Suit No. 898 of 14.5.1990 for declaration and mandatory
injunction seeking full pay and allowances for the period 25.5.1965 to
28.4.1978 and also claimed that he was entitled to cross efficiency bar w.e.f.
1.9.1981 and consequential relief thereof i.e.
proficiency step up increments, increase in leave encashment, pension and
gratuity etc. with interest at 18% per annum. The Appellant sought mandatory
injunction for payment of the aforementioned dues with interest.
The suit of the Appellant was partly allowed by the trial court holding him
entitled for an amount of Rs.60,586.75 along with interest at 12% per annum
from the date the amount became due till its actual payment. The claim for
crossing the efficiency bar was, however, rejected by the Trial Court being
An appeal was filed by the Appellant which was allowed by the First
Appellate Court vide judgment dated 17.11.1993 and the appeal filed by the
Respondent/State was dismissed. The Appellant was held to be entitled for consideration
of crossing the efficiency bar.
Two second appeals which were filed by the Respondent against the common
judgment of the Appellate Court were dismissed by the High Court on 12.9.1994.
Thereafter the Appellant filed execution petition in the Court of Additional
Civil Judge, Amritsar on 31.10.1994.
The Respondent/State filed its objections. The Respondent/State thereupon
filed Special Leave Petition Nos. 1527-1528 of 1995 in this Court and the same
was dismissed vide order dated 3.2.1995. The Appellant replied to the
objections of the State in the execution proceedings. Office Order No. 100
dated 24.3.1995 was issued by the Respondent whereby the Appellant was allowed
to cross the efficiency bar. Vide Office Order No. 103/95 dated 30.3.1995, the
Appellant was also granted one additional increment on consolidation of 8
years' service in the form of proficiency step up w.e.f. 1.1.1986. The
Executing Court dismissed the objections filed by the Respondent/State and held
that the Appellant is entitled for interest at 12% per annum with yearly rest.
The Civil Revision Petition filed by the State against the order dated
15.5.1996 of the Executing Court was allowed holding that the Appellant is
entitled to an amount of Rs.60,586.75 from 9.12.1992, namely, the date of
decree upto the date of actual payment.
Mr. Satinder S. Gulati, the learned counsel for the Appellant submitted that
in terms of the decree which has attained finality, the High Court in exercise
of its revisional jurisdiction passed an order, could not have ordered/varied
the terms of the decree in view of the law laid down by this Court in various
judgments. The learned counsel further submitted that the High Court was under
an apparent error in granting interest from 9.12.1992 though the decree
specifically stated that the interest is liable to be paid by the Respondent
from the date of the amount became due and payable to the Appellant. The
learned counsel also addressed on the question that the Executing Court cannot
go behind the terms of a decree passed by a Court of a competent jurisdiction.
He has further submitted that the Respondent has already held Appellant
entitled for crossing the efficiency bar and had made payment against the same
to the Appellant, but the High Court had passed the impugned judgment as if the
Appellant is yet to be considered for crossing the efficiency bar.
It was submitted that the Appellant had made a representation to the
department for his reinstatement to Superintending Engineer (Construction
Cell), Amritsar which was kept under consideration for two years, thereafter
the Appellant was reinstated vide Order No.
17/F&K dated 12.4.1978 issued by the Chief Engineer, PWD. It was ordered
by the Chief Engineer for his reinstatement and the period of suspension was
ordered to be treated on duty for all intents and purposes.
It was further submitted that in pursuance and in continuation of the
aforesaid order dated 12.4.1978 passed by the Chief Engineer, the Appellant was
given proforma promotion as Officiating Head Clerk w.e.f. 24.9.1972 on the
orders issued by the Superintending Engineer, Amritsar, PWD dated 27.4.1978 and
that the Appellant was posted as Officiating Head Clerk in Bridge Investigating
Division and where the Appellant joined the duty on 28.4.1978. Thus, it is seen
that in view of the aforementioned facts and circumstances the whole suspension
period of the Appellant was regularized by the department as duty period for
all intents and purposes, therefore, the Appellant became entitled for whole arrears
of pay and emoluments and the suspension period stood condoned. But the High
Court vide order dated 8.4.2005 allowed the Civil Revision filed by the
Respondent setting aside the order dated 15.5.1996 passed by the Executing
Court. It is submitted that the impugned order is apparently erroneous for the
reasons that the High Court held in it that the amount of Rs.60,586.75 is
payable to the Appellant along with interest @ 12% per annum from 9.12.1992
till the date of payment, instead from the date the amounts became due and
payable to the Appellant.
The learned counsel for the Appellant submitted that the Respondent did not
lead any evidence to their objections but on behalf of the Appellant two
witnesses were examined and the Respondent did not lead any evidence to show
that the Appellant was not entitled to the interest @ 12% per annum with yearly
rest as Appellant raised in the execution.
It was also brought to our notice that an Office Order No. 100 dated
24.3.1995 was passed by the Superintending Engineer, Central Works Circle, PWD
allowing the Appellant to cross the efficiency bar w.e.f. 1.9.1981 at the stage
of Rs.850/- in the pay scale of Rs.620-20- 700/25-850/30-1000/40-1200 and his
pay was raised from Rs.850/- to Rs.880/- per month. The Respondent vide Office
Order No. 103 dated 30.3.1995 granted the Appellant one additional increment on
consolidation of 8 years' in the form of proficiency step-up w.e.f.
1.1.1986 in the pay scale of Rs.2000-3500 raising his pay from Rs.2100 to
Rs.2150 per month. Thus, it is seen that the Respondent has already held that
the Appellant to be entitled for crossing the efficiency bar and had made the
payment to him for the same and the High Court in the impugned judgment has
said that the Respondent should consider the Appellant's case for crossing the
In support of his contention that the Executing Court cannot go behind the
terms of the decree passed by a Court of competent jurisdiction, the learned
counsel for the Appellant placed strong reliance on the judgments in Vasudev
Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors. 1970 (1) SCC 670; C.
Gangacharan v. C. Narayanan reported in 2000 (1) SCC 459 and Bhawarlal Bhandari
v. Universal Heavy Mechanical Lifting Enterprises 1999 (1) SCC 558.
We shall now consider the above three judgments.
Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors.(supra), this
Court in para 6 held the following:- "A court executing a decree cannot go
behind the decree : between the parties or their representatives it must take
the decree according to its tenor, and cannot entertain any objection that the
decree was incorrect in law or on facts. Until it is set aside by an
appropriate proceeding in appeal or revision, a decree even if it be erroneous
is still binding between the parties."
This Court held that the Executing Court cannot go behind the decree unless
it is shown that it was passed by a Court inherently lacking jurisdiction and
thus was a nullity. The aforesaid decision of this Court squarely applies to
the facts of the present case. This is not a case in which the decree on the
face of it was shown to be without jurisdiction.
It is not the case of the Respondent that the Court which passed the decree
was lacking inherent jurisdiction to pass such a decree.
This Court in the judgment reported in Bhawarlal Bhandari v.
Universal Heavy Mechanical Lifting Enterprises(supra) and in C.
Gangacharan vs. C. Narayanan (supra) has also taken the same view that the
Executing Court cannot go behind the decree of a Court of competent
jurisdiction except in the decrees void ab initio without jurisdiction.
Mr. Kuldip Singh, learned counsel for the Respondent, in reply to the
arguments advanced by the learned counsel for the Appellant, submitted that
this Court had issued notice to the Respondent limited to the question of
efficiency bar and also regarding the due date from which the payments are to
be made. According to him, the High Court has decided the case after due
consideration of all aspects on the due dates for awarding the interest i.e.
9.12.1992 is quite justified and are well within the provisions of the settled
law. It is further submitted as follows:- "Due date from which the
payments are to be made.
That Hon'ble High Court orders dated 8.4.2005 are in order and as per
That the Trial Court decreed the suit
filed on 9.12.1992 for the 60586.75 with interest @ 12% per annum from the date,
the amount become due till the date of realization.
That the amount of Rs.60586.75 was
clearly quantified by the Trial Court in his orders dated 9.12.1992.
That there is no provision in the
decree that the amount become due in the year 1965 when the plaintiff was
suspended or that this amount become due on the date of his reinstatement on
That there is no provision of any
specific date in the decree and the award is clearly quantified to Rs.60586.75
paisa and was declared on the date of decree i.e.
9.12.1992 and thus interest become due only after that date.
In the light of the above background, the following substantial questions of
law of public importance arose for consideration of this Court:- A. Whether in
terms of the decree which has attained finality, the High Court in exercise of
its revisional jurisdiction against the order passed in execution would have
added/varied terms of decree? B. Whether the High Court was under an apparent
error in granting interest from 9.12.1992 though the decree specifically stated
that the interest would be paid along with interest @ 12% per annum from the date
the amount became due and payable to the Appellant? C. Whether the impugned
directions by the High Court in regard to crossing of efficiency bar by the
Appellant are erroneous for the reasons that the Respondent/State has already
allowed the Appellant to cross the efficiency bar w.e.f. 1.9.1981 by passing an
office order No. 100 dated 24.3.1995? We have carefully considered all the
orders passed by the Trial Court, Appellate Court and the High Court and also
the order passed by the Executing Court. We have also perused the annexures and
the records filed along with the SLP. Our attention was drawn to the relevant
passages in the judgments. Both the learned counsel argued the case at length.
In our opinion, the order of the High Court is absolutely incorrect. In the
instant case, the Respondent/State has taken the stand in their
counter-affidavit before this Court totally contrary to the stand taken before
the High Court and the courts below. The Trial Court passed the decree dated
9.12.1992 in favour of the Appellant holding him entitled to interest @ 12% per
annum from the date the amount became due and payable till realization. The
decree simply meant that the Appellant is entitled for dues and the allowances
for the period 25.5.1965 to 28.4.1978, thus Appellant became entitled for the
interest on due amounts from 25.5.1965 untill the date of realization. The
State of Punjab in their objections to the Execution Petition of the Appellant
took erroneous ground that the Appellant became entitled for payment from the
date i.e. 24.4.1978, but before this Court the State of Punjab has taken the
stand in para 5(v) of the counter-affidavit that the Appellant is entitled for
interest from the date of decree i.e. 9.12.1992. It is totally contrary to the
earlier stand taken by them. Therefore, contradictory stand taken by the State
cannot at all be countenanced.
In the instant case, the Respondent/State has already held the Appellant
entitled to cross the efficiency bar w.e.f. 1.1.1981 and his pay was raised
from Rs.850/- to Rs.880/- per month vide their office order No. 100 dated
24.3.1985. The Respondent/State even granted one additional increment w.e.f.
1.1.1986 raising his pay from Rs.2100/- to Rs.2150/- per month vide their
office order No. 103 dated 30.3.1995.
The Appellant has been paid the due amounts by the Respondent/State
according to their aforementioned office orders. Now, before this Court for the
first time the State has taken the stand in paragraphs (vii) and (viii) that
the order of the High Court for considering the case of the Appellant for
crossing the stage of efficiency bar is justified. This is the case where the
decree passed by the Trial Court and further leave granted by the First
Appellate Court in favour of the Appellant were approved by all the Courts
up-till this Court. This Court vide order dated 3.2.1995 dismissed the Special
Leave Petition (C) Nos. 1527-1528 of 1995 filed against the judgment dated
12.9.1994 in RSA Nos. 1915-1916 of 1994 and thus the decree passed in favour of
the Appellant attained finality. In such a case, the stand taken by the State
in their counter-affidavit is really unfortunate. We have already noticed that
the High Court in exercise of its revisional jurisdiction cannot vary the terms
of the decree in execution in view of the ruling by this Court in 1970 (1) SCC
670 and 1999 (1) SCC 558 and 2000(1) SCC 459. In our opinion, the High Court
has committed an apparent error in granting interest from 9.12.1992 though the
interest is liable to be paid by the Respondent to the Appellant. Thus, we hold
that the Appellant is entitled for an amount of Rs.60,586.75 along with
interest @ 12% per annum from the date the amount became due and payable,
namely, from 25.6.1965. We have already pointed out that the contradictory
statements made and taken in the counter affidavit by the State.
In our view, the impugned order dated 8.4.2005 passed by the High Court is
totally erroneous and thus not sustainable in law. We, therefore, direct the
Respondent/State to pay the said sum of Rs.60,586.75 with simple interest @ 12%
per annum from 25.5.1965 till its realization. The entire amount due shall be
paid within two months from this date failing which the Appellant will be
entitled for payment with 18% simple interest per annum.
The Civil Appeal stands allowed. However, there will be no order as to
Pages: 1 2