The executing court's limited powers at the execution stage, the prohibition on questioning the validity of the decree, and the requirement to execute the decree as made.

JUDGMENT :

1. The Petitioner, through the medium of this petition, has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, being aggrieved of the order dated 27.08.2021 (for short the ‘Impugned Order’) passed by the Court of Sub-Judge/Chief Judicial Magistrate, Srinagar (for short ‘Executing Court’) while deciding an application under Section 47 of the J&K Civil Procedure Code (for short the ‘Code’) filed by Respondents-Judgement Debtors in an execution petition titled Dr. Abid Hussain v. State of J&K & Ors. filed by Petitioner-Decree Holder seeking execution of judgment and decree dated 16.10.2008.

2. In terms of the Impugned Order, the Executing Court has declared the decree dated 16.10.2008, passed in a suit titled Dr. Abid Hussain v. State of J&K & Ors. filed by the Petitioner-Decree Holder against the Respondents-Judgement Debtors, as bad in law and void ab initio and consequently the execution petition filed for its execution has been dismissed.

3. Factual Background :

Petitioner, appointed as Assistant Surgeon in the Respondent-Department in the year 1986, while performing his duties at Chrar-i-Sharief, Budgam, had a fall which resulted in a fracture in his left shoulder. Petitioner proceeded on earned leave of 120 days w.e.f. 14.01.1995, a post facto sanction to which was accorded by the Respondents vide letter dated 30.10.1995. During the period of recovery, the Petitioner was diagnosed with gastric malignancy which constrained him to extend his leave and accordingly on 22.06.1995 he applied for 18 months leave supporting his application with a Medical Certificate. The said application was routed by the concerned Block Medical Officer through the concerned Chief Medical Officer to Director, Health Services Kashmir-Respondent No. 3. Petitioner underwent surgery and applied for extension of leave from time to time. After undergoing treatment for the malignancy and after being declared healthy to resume the duties by the doctors, Petitioner approached the Respondents for allowing him to rejoin his duties. Petitioner claimed to have not heard from the department till the year 2000 when he received a show-cause notice from the Respondent No. 2 alleging therein that he was required to join his duties and report to SDH, Sogam, Kupwara. Petitioner replied in detail to the said notice stating therein that he never received any order to that effect. The Petitioner claimed to have not heard from the Department yet again and he again approached them and it was only then that the Petitioner was informed that vide order No. 1017 HME of 2002 dated 23.12.2002 his services had been terminated.

Petitioner immediately served got a notice under Section 80 of the Code served upon the Respondents which was replied by the Respondent No. 3. Being aggrieved of the order of termination, Petitioner filed a suit for Declaration and Injunction on 20.02.2004 which was transferred to the Court of Sub-Judge/Chief Judicial Magistrate, Srinagar.

Respondents caused their appearance through different counsels engaged by the Respondents from time to time, however, despite several opportunities, failed to file to file written statement and were set exparte. An application came to be filed on behalf of the Respondents seeking aside ex-parte proceedings, however, the same was dismissed in-default and the trial proceeded ex-parte.

The case set up by the Petitioner in his plaint was that his services were terminated illegally without following the due procedure established by law. No charge-sheet was served upon the Petitioner and no enquiry was conducted. Also, no 2nd show-cause notice for the proposed punishment was served upon him. In support of his case, the Petitioner appeared as witness. Also, the then legal assistant posted in the office of Respondent No. 2 appeared as witness who, after perusal of the record, deposed that there was no charge-sheet available in the file, no show-cause notice was available on reco