Judgment

BACHAWAT, J.:- In January, 1948 in view of the imminent constitutional changes in the Baroda State, it was considered likely that the services of the Diwan Sri Sudhalkar, the appellant and Sri Gaekwad, three official members of the Executive Council of the State would be prematurely terminated. The respondent was then drawing a salary of Rs. 2000 per month and was to retire on February 14, l952 on reaching the superannuation age of 56 Years. On January 28, 1948, His Highness the Maharaja of Baroda enhanced the respondents salary to Rs. 2500/- per month. By separate orders the salaries of other official members also were enhanced. By a Huzur order dated February 8, 1948 the Maharaja fixed the pension and other retirement benefits of the respondent and Sri Gaekwad

2. The, order was in these terms: -

"His Highness the Maharaja Saheb has been pleased to order that in the, event of premature retirement of the Government Members, Messrs D. V. Gaekwad and Chandrachud, they will get forthwith as compensation an amount equivalent to the total amount they would have received had they continued in service upto the date of retirement and a full pension of Rs. 500/- per month from the date of the premature retirement.

2. Mr. D. V. Gaekwad s salary is raised to Rs. 2000/- from the date of his confirmation as Naib Dewan".

On the same date the Maharaja by a separate order fixed the pension and retirement benefits of Sri Sudhalkar. On May 18, 1948, the Maharaja directed the compulsory retirement of the respondent with effect from June 1, 1948. Soon thereafter the respondent drew from the State Treasury Rs. 95196/4/- on account of compensation allowance. On June 1, 1948 he retired from service. On the same date Dr. Jivraj Mehta became the Diwan and President of the Executive Council in place of Sri Sudhalkar. On the representation of Dr. Jivraj Mehta the Maharaja passed another Huzur order on July 22, 1948 modifying his previous orders and directing that the respondent and the other officials would draw pension only as and when they would reach the age of retirement and that the respondent would in addition draw the salary to which he might be eligible under the account Rules. In October, 1948 there was correspondence touching the Huzur Orders between the Maharaja and Dr. Jivraj Mehta. On April 22, 1949 the Executive Council of the State of Baroda headed by Dr. Jivraj Mehta purported to review and set aside the Huzur Orders with respect to payment of compensation to the retiring officials and directed that (1) the respondent would get 4 months privilege leave salary and as from April 1, 1949 the pension of Rs. 500/- per month sanctioned by the Maharaja. (2) the amount received by the respondent as compensation be forfeited to the State and returned by him to the Treasury; (3) Rs. 77,416/- consequently due from him after taking into account his salary and pension up to March 31, 1949 be recovered from him under Section 148 of the Baroda Land Revenue Code. Pursuant to this order the respondent s properties were attached on April 26, 1949. The respondent was compelled to refund to the State Treasury Rs. 55,000/- on April 27, 1949, and Rs. 10,000/- on April 29, 1949. On March 14, 1952 the Collector of Baroda sent a notice to the respondent demanding payment of the balance of Rs. 12,416/-. The respondent continued to draw pension at the rate of Rs. 500/- per month from April 1, 1949. On April 17, 1952 he gave notice of his intention to file the present suit under Section 80 of the Code of Civil Procedure. On June 23, 1952 he instituted the suit against the State of Bombay asking for a declaration that the Huzur order dated February 8, 1948 as modified by the Huzur order dated July 22, 1948 was valid and binding on the defendant a declaration that the order of the Executive Council dated April 22, 1949 was invalid, an injunction restraining the defendant from recovering Rupees 12,416/- and a decree for Rs. 65,000/-, and interest thereon totalli