Advocates:
['KC SAMDARIYA', '', 'JR BHATI', 'ARVIND SAMDARIYA', 'SD PUROHIT', '', 'NK JOSHI', 'HEMANT CHAUDHARY GA']

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

J U D G M E N T

D.B. CIVIL SPL. APPEAL (WRIT) NO.393/2010

Secretary, Bal Vikas Mandal, Jaisalmer

VS.

Shri Om Prakash Bhatia & Ors.

Date of Judgment

:

23.05.2011

PRESENT

HON'BLE MR.JUSTICE A.M.SAPRE

HON'BLE MR.JUSTICE C.M. TOTLA

Mr. K.C.Samdariya, for the appellant.

Mr. S.D.Purohit, for respondent.

Mr. Hemant Choudhary, G.A.

BY THE COURT: (PER HON'BLE A.M. SAPRE, J)

This is an intra court appeal filed by the writ

petitioner of Writ Petition No.2933 of 2007 under Rule 134 of

the Rajasthan High Court's Rules against an order dt. 6.5.2010

passed by Single Judge in aforementioned writ petition.

2.

In order to appreciate the issue raised in the

appeal, it is necessary to state the relevant facts infra.

3.

The appellant is an educational Institution. They

are running a School in the name of “Gandhi BaL Mandir” at

Jaisalmer. It is an aided Institution. The respondent No.1 is

working in this School as teacher. Some dispute arose between

the appellant and respondent No.1 regarding grant of benefit

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of selection scale of pay to the respondent No.1, which

according to the respondent No.1, he was entitled to claim

from the appellant. Since by two orders viz. 6.1.2001 and

30.1.2001, this benefit was denied to the respondent No.1 by

the appellant and hence respondent No.1 filed an appeal

under Section 19 of the Rajasthan Non-Government

Educational Institute Act, 1989 (for short called the Act) before

the appellate Tribunal constituted under the Act against these

orders for resolving such dispute.

4.

The Tribunal vide order dt 11.11.2002 allowed the

appeal filed by the respondent No.1 and set aside the two

orders dt 6.1.2002 and 301.2001 impugned by him in his

appeal. The appellant though aggrieved by this order did not

challenge this order and hence it became final.

5.

Since despite the appeal being allowed and the two

orders impugned therein having been set aside, no benefit of

any nature was being given to the respondent No.1 by the

appellant and hence the respondent No.1 (as decree holder)

was constrained to file execution application for execution of

the said order (11.11.2002) before the Civil Judge (Kanistha

Khand) Jaisalmer being execution case No.5/2004 for claiming

benefits flowing from such order. The appellant (as judgment

debtor) contested this application inter-alia on the ground

that firstly the decree holder is not entitled to claim any relief

much less relief which he has claimed and secondly the order

being in the nature of declaratory one, it has not awarded to

him any kind of monetary benefits, which are capable of being

recoverable iin execution of such order and lastly the

executing court can not go behind the order and grant any

fresh relief which was not originally granted to the decree

holder by the appellate court.

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6.

The learned Civil Judge by order dt 17.4.2007

allowed the application made by respondent No.1 and directed

recovery of monetary benefits flowing from the said order for

being paid to the respondent No.1 by the appellant. It is

against this order, the appellant felt aggrieved and filed writ

petition under Article 227 of the Constitution of India out of

which this intra court appeal arise. The learned Single Judge

by impugned order dismissed the writ petition and in

consequence upheld the order passed by the executing court

i.e. Civil Court. It is against this order; the writ petitioner has

now felt aggrieved and filed this intra court appeal.

7.

At the time of hearing of this appeal, one question

arose rather one objection in the form of preliminary one was

raised by the respondent. The question was as to the remedy

available to the appellant to challenge the order dt 17.4.2007

passed by Civil Court as an executing court? Viz. whether the

remedy of civil revision under Section 115 of C.P.Code is

available to the appellant (writ