Where decree has been passed in exercise of Appellate Jurisdiction, then Court of first instance is deemed to be included to Court which passed such decree u/s 37(a) of CPC: P&H HC

Read Order: Chander Mohan Bhatnagar v. Haryana State Council for Child Welfare & Others

Monika Rahar

Chandigarh, March 11, 2022:  While dealing with an Execution Application, the Punjab and Haryana High Court has held that Section 37(a) of CPC is wide within its ambit that where the decree had been passed in the exercise of the Appellate Jurisdiction then the Court of the first instance is deemed to be included to the Court which passed the decree. 

The Division Bench of Justice G.S. Sandhawalia and Justice Vikas Suri  added, “Rather the power of execution has been widened, not only with the Appellate Court but also the Court of first instance which is the Writ Court and the said provision cannot be read in the manner that the jurisdiction would only lie with the Writ Court and not the Appellate Court.”

The court was dealing with an application under Order 21 Rule 11 read with Section 151 CPC filed by the applicant appellant for compliance of the order dated July 25, 2018, passed by the Co-ordinate Bench.

It was the case of the applicant dependent that he was entitled to be paid full salary from February 12, 2013, till the second-order of his removal from service issued on January 24, 2017, along with other benefits including ACP + entitlement to higher pay-scale. 

When the applicant-appellant approached the Single Judge Bench of the High Court with a writ petition, the High Court vide its order quashed the order of removal (dated February 12, 2013) of the appellant from his service. The matter was carried in appeal by the applicant-appellant on the ground that no financial relief was granted in relation to the period in question and neither any direction was issued regarding reinstatement of the appellant in service since another order of removal from service was passed by the respondent-Society. Resultantly, the Co-ordinate Bench noticed that neither the appellant was reinstated in service nor placed under suspension and even the salary was not paid. After submitting the inquiry report, the appellant-writ petitioner had been removed from service vide order during the pendency of the appeal. 

Accordingly,  the co-ordinate bench recorded a finding that he be paid full salary for the period from the date of termination till the date of the second order of removal from service was passed. However, it was the case of the appellant that he was paid only a sum of Rs.15,02,147/- as outstanding salary for the period in question and that the respondent-Council did not calculate the salary as per the recommendations of the 7th Pay Commission from 2016 and if the same was done, the total outstanding salary would have amounted to Rs.31,05,759/-. It was his case that he filed a Contempt Petition and liberty was granted to him to avail his remedy in accordance with the law in case some grievance survived. 

On the other hand, the respondents argued that the Division Bench directed the above-said benefits but the same did not mean that it was in the form of routine salary since the appellant did not attend the office during this tenure and neither the same was considered as duty period by the answering-respondents. It was also contended that the Execution Application could only be filed in the writ petition (Original Jurisdiction) and not before the Letters Patent Appeal (Appellate Jurisdiction). Also, the respondent submitted that the service career of the appellant was tainted and controversial and thus, he was not entitled to senior scale and there were various complaints against him. It was further pleaded that the ground of senior scale or ACP was never a subject matter of writ petition in question and the benefits had been sought after the decision of the Co-ordinate Bench which is in the form of illegal claims in the garb of execution proceedings.

After considering the matter, the Court noted that the application was maintainable before the Court in as much as the Single Judge did not grant certain benefits which were allowed by the Appellate Court on July 25, 2018 order. Further, the Court opined that Section 37(a) thus is wide within its ambit that where the decree had been passed in the exercise of the Appellate Jurisdiction then the Court of the first instance is deemed to be included to the Court which passed the decree, rather the power of execution has been widened, not only with the Appellate Court but also the Court of the first instance which is the Writ Court and the said provision cannot be read in the manner that the jurisdiction would only lie with the Writ Court and not the Appellate Court, the Court added. 

Further, the Court made reference to the provisions of Order 21 Rule 10 CPC which provides that if the holder of the decree desires to execute it, he shall apply to the Court which passed the decree or to the officer appointed on this behalf.

After examining a plethora of decisions, the Court opined that in the present case, the order which was sought to be enforced as passed by the Appellate Court (dated July 25, 2018) and therefore, the contention that the Writ Court would have jurisdiction was declared as baseless by the Court. 

The Court then went on to place reliance upon the judgment of the Full Bench in Jagdish Chander Vs. State of Haryana & another 2006 (1) PLJ 776 wherein the issue arose whether the order of the High Court rendered under Articles 226/227 of the Constitution of India is a decree and whether it is executable. Resultantly, it was held that the provisions of the CPC shall not be applicable mutatis-mutandis and the powers of the High Court are enormous and expenses but have to be exercised consciously and cautiously.

Also, the Court noted that the stand of the respondents was also not justified as they sought to distinguish the case of the applicant-appellant from the other serving employees as he did not attend his duties for the said period and neither the same was considered as duty period. The Court also opined that the Applicant-appellant was estopped by the respondents themselves from attending the duties since on account of the termination order having been passed on 12.02.2013 and the said order had not been found to be justified by the Single Judge. 

Further, the Court observed that it was held that the termination order was not sustainable on account of the denial of opportunity to show cause against the findings of the Enquiry Officer and the termination order had been set aside. The ground was that the disciplinary authority expressed its agreement with the findings of the Enquiry Officer and proposed punishment without first giving an opportunity to the petitioner to show cause against the findings of the Enquiry Officer, added the Court.

The Court then opined that once the termination order was set aside the appellant was deemed to be in service and therefore, the Co-ordinate Bench rightly allowed his appeal granting the monetary benefits till the fresh order was passed. 

In this regard, the Court opined, “Once similar benefits were being given to all employees after 01.01.2016, the applicant-appellant could not be put to different terms as he was deemed to be in service for the said period from 01.01.2016 till the date the termination order was passed i.e. 24.01.2017. Therefore, the denial for enhanced pay-scales is not justified, in such circumstances.”

Accordingly, in view of the above discussion, the present Execution Application was allowed.