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IN THE HIGH COURT OF DELHI AT NEW DELHI

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EX.F.A. 39/2018

UMA DEVI

..... Appellant

Through:

Mr. Pankaj Kumar Singh, Adv.

Versus

UNION OF INDIA & ORS

..... Respondents

Through:

None.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

O R D E R

%

28.09.2018

CM No.40119/2018 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

EX.F.A. 39/2018, CM No.40117/2018 (for condonation of delay of 19

days in filing the appeal) & CM No.40118/2018 (for permission to file

additional documents)

3. This Execution First Appeal invoking Order XXI Rule 58 of the Code

of Civil Procedure, 1908 (CPC) impugns the order [dated 4^th May, 2018 in

Execution No.5583/2016 of the Court of Additional District Judge-05, New

Delhi] of disposal as satisfied of the application filed by the appellant for

execution as a decree of an award of the Central Government Industrial Tribunal.

4. It was the plea of the appellant / decree-holder that an amount of

Rs.6,37,985/- was still to be paid by the respondents / judgment-debtors

under the award / decree. On the contrary, it was the contention of the

respondents / judgment-debtors, that total amount payable under the award

was Rs.6,20,594/- and which had already been paid.

5. The Executing Court disposed of the Execution as satisfied, reasoning

that (i) vide the award, the decree-holder was held entitled to be paid the

salary as well as all consequential benefits to which she was otherwise

entitled; (ii) the respondents / judgment-debtors had placed on record the

guidelines following which the amount of Rs.6,20,594/- had been computed

and paid to the appellant / decree-holder; (iii) the respondents / judgment-

debtors had also placed on record the calculation sheet for arriving at the

figure of Rs.6,20,594/- paid to the appellant / decree-holder; (iv) the

calculation sheet submitted by the appellant / decree-holder referred to pay

fixation with effect from January, 2001 upto 31^st December, 2015 and also

included a sum of Rs.50,000/- towards harassment; (v) however no amount

of Rs.50,000/- towards harassment had been awarded by the Industrial

Tribunal; and, (vi) the appellant / decree-holder was entitled only to

payment from the date she was released from her service i.e. March, 2011,

till her superannuation on attaining 60 years of age i.e. 31^st December, 2015

and the computation submitted by the appellant / decree-holder was not in

accordance with the award / decree.

6. The counsel for the appellant / decree-holder at the outset only

contends that the appellant / decree-holder was wrong in claiming

Rs.50,000/- which had not been awarded. He however contends that only

that amount of Rs.50,000/- should have been excluded and the Executing

Court should have got recovered the balance amount as claimed by the

appellant / decree-holder and the Executing Court did not determine the

balance amount due.

7. I have enquired from the counsel for the appellant / decree-holder,

how Order XXI Rule 58 of the CPC, invoking which this appeal is filed,

applies. Order XXI Rule 58 of the CPC provides for adjudication of claims

to or objections to attachment of property and Sub-Rule (4) thereof provides

that where any claim or objection has been adjudicated thereunder, the order

made thereon shall have the same force and be subject to the same

conditions as to appeal or otherwise as if it was a decree. The impugned

order does not adjudicate any claim or objection as to attachment of property.

8. The counsel for the appellant / decree-holder states that in fact he had

invoked Section 104 of the CPC but upon objection being raised by the

Registry, the appeal was filed invoking Order XXI Rule 58 of the CPC.

9. If the Registry raises any objection, it is the duty of the advocates to

satisfy the Registry citing law, of the maintainability of the appeal and the

advocates are no