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CASE NO.: Appeal (civil)  1220 of 2007

PETITIONER: Vedic  Girls Senior Secondary School Arya Samaj Mandir, Jhajjar

RESPONDENT: Smt. Rajwanti & Ors

DATE OF JUDGMENT: 08/03/2007

BENCH: Dr.AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.12052/2004)

ALTAMAS KABIR, J.

       Leave granted.         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 framed:-          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 Fund? OPP.

2.      Whether the plaintiff is entitled to receive

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salary by crossed cheque? OPP.

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 conduct? OPD.

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 CPC? OPD.

9.      Relief.

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 w.e.f.  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

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Government Scale which was Rs. 1400-2600/-, as revised  from time to 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 order.                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.

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       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  of this Court in the case of  State of  Punjab Vs. Krishan  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  State of Punjab Vs. Buta Singh, reported in 1995 Supp. (3)  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

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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.