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CASE NO.: Appeal (civil)  745 of 2007

PETITIONER: Darshan Singh

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 13/02/2007

BENCH: Dr. AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T [Arising out of SLP(C) No. 20477 of 2005]

Dr. AR. LAKSHMANAN, J.

       Leave granted.

       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 Clerk w.e.f.  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 28.2.1989.

       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 time barred.

       An appeal was filed by the Appellant which was allowed by the

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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

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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 efficiency bar.   

       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

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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.

i)      That Hon’ble High Court orders dated  8.4.2005 are in order and as per law. ii)     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. iii)    That the amount of Rs.60586.75 was  clearly quantified by the Trial Court in his  orders dated 9.12.1992. iv)     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 12.4.1978. v)      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

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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 costs.