Advocates:
RAJESH PRASAD SINGHRAVI P. WADHWANI

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CASE NO.:

Appeal (civil) 4481 of 2001

PETITIONER:

DHURANDHAR PRASAD SINGH

Vs.

RESPONDENT:

JAI PRAKASH UNIVERSITY AND ORS.

DATE OF JUDGMENT: 24/07/2001

BENCH:

G.B. Pattanaik & B.N. Agrawal

JUDGMENT:

B.N.AGRAWAL, J.

Leave granted.

In this appeal decree holder-appellant has challenged the

judgment rendered by Patna High Court whereby revision application

has been allowed, order passed by the executing Court, rejecting

objection under Section 47 of the Code of Civil Procedure

(hereinafter referred to as the Code) to the executability of decree

passed in title suit No. 115 of 1977, set aside and objection allowed.

Plaintiff-appellant filed suit for a declaration that order dated

11th October, 1977, passed by defendant No. 2 (respondent No.3)

who was Secretary of Governing Body, Ganga Singh College,

terminating the services of plaintiff, was illegal. According to the case

of the plaintiff disclosed in the plaint, he was appointed as Routine-

cum-Examination Clerk in the said college, which was affiliated to

Bihar University, by Principal of the College on 8.1.1977 which was

subsequently approved by the ad hoc Governing Body. After

constitution of the regular Governing Body, defendant No.2 passed

an order terminating the services of plaintiff in contravention of

Statutes of Bihar University which necessitated filing of the present

suit. In the said suit, the Governing Body of the College in question

which was defendant No. 1 entered appearance but no written

statement was filed and the defendant absented itself and the suit

was fixed for exparte hearing which was decreed exparte and the

defendants were permanently restrained from giving effect to the

order of termination. As the judgment debtors refused to comply the

directions contained in the decree, the appellant levied execution. In

the said execution case, an objection under Section 47 of the Code

was filed on behalf of Principal of the College as well as the Bihar

University objecting to the executability of the decree on grounds,

inter alia, that during the pendency of the suit on Ist October, 1980,

the College in question became the constituent unit of the Bihar

University and the erstwhile Governing Body ceased to exist but the

University was not impleaded party in the suit and consequently the

decree was not executable against it inasmuch as the exparte decree

was obtained against the erstwhile management by suppressing this

fact. As subsequently during the pendency of the execution case, Jai

Prakash University was formed and the college in question thereupon

became a constituent unit of the said University, the same also filed

similar objection to the executability of the decree.

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The executing court allowed the objection and thereafter when

the matter was taken to the High Court in revision, the case was

remanded to the executing Court to dispose of the objection afresh

after giving opportunity of adducing evidence to the parties. After

remand the parties adduced evidence in support of their respective

cases and the executing Court by its order dated 22nd September,

1997 rejected objection under Section 47 of the Code, against which

order when a revision was preferred before the High Court, the same

was allowed, order passed by the executing Court was set aside and

objection under Section 47 of the Code was allowed. Hence, this

appeal by Special Leave.

Mr. Prabha Shanker Mishra, learned Senior Counsel appearing

on behalf of the appellant in support of the appeal submitted that

although the college in question was taken over by the Bihar

University as its constituent unit with all its assets and liabilities and

thereby it was a case of devolution of interest during the pendency of

the suit within the meaning of Order 22 Rule 10 of the Code, the High

Court was not justified in holding that the d