The District Manager vs Joint Secretary
2022 Latest Caselaw 8922 AP

        THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION Nos.1061, 216, 218 and 1012 of 2020

COMMON ORDER:

        C.R.P.No.1061 of 2020 questions the correctness of

docket order dated 12.02.2020 of learned Principal District

Judge, Visakhapatnam in E.P.No.457 of 2017 in I.D.No.20 of

2005. C.R.P.No.216 of 2020 questions the correctness of order

dated     25.11.2019    of    learned   Principal   District     Judge,

Visakhapatnam in E.A.No.688 of 2019 in E.P.No.1 of 2018 in

I.D.No.20 of 2005.           C.R.P.No.218 of 2020 questions the

correctness of order dated 25.11.2019 of learned Principal

District Judge, Visakhapatnam in E.A.No.812 of 2019 in

E.P.No.457 of 2017 in I.D.No.20 of 2005.            C.R.P.No.1012 of

2020 questions the correctness of order dated 12.02.2020 of

learned Principal District Judge, Visakhapatnam in E.P.No.1 of

2018 in I.D.No.20 of 2005.

2.      Judgment debtors are the revision petitioners.           Decree

holder is the respondent. Common question of fact and law are

involved in all the four revisions and all the four revisions are

argued by the learned counsel on both sides. In these

circumstances, they need be disposed of by this common order.

3. The facts that are not in dispute are relevant to be noticed

here:

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On an application moved by the respondent herein in

I.D.No.20 of 2005 the Industrial Tribunal-cum-Labour Court

(Central) at Hyderabad (for short, „the Industrial Tribunal‟)

passed an award dated 29.04.2014 directing the Food

Corporation of India to reinstate 72 contract workers into

service with 50% back wages and additionally it ordered to

extend the benefit of Direct Payment system to the contract

workers. Aggrieved of it, the judgment debtors preferred

W.P.No.33452 of 2014 under Article 226 of the Constitution of

India wherein the award and its legality was questioned. The

said writ petition is pending before this Court. The decree

holder under the award also filed W.P.No.23610 of 2015 seeking

implementation of the award and the same is pending before

this Court. While those writ petitions are pending, the decree

holder chose to move execution petitions for execution of the

award. They filed E.P.No.457 of 2017 in I.D.No.20 of 2005 and

filed E.P.No.1 of 2018 in I.D.No.20 of 2005. Thus, two

execution petitions came to be filed for execution of the award.

On receipt of the notices, judgment debtors put in their

appearance and filed counters in the execution petitions. In the

counters judgment debtors questioned the maintainability of

execution petitions on various grounds. It is stated that the

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Court which passed the award alone is competent to execute

but not the Court at Visakhapatnam and therefore, the

executing Court has no jurisdiction to entertain the execution

petitions. It is categorically averred therein requesting the

executing Court to decide the issue of jurisdiction at the first

instance as a preliminary issue and only then take decision in

the execution petitions. The further contention in the counter

include that in the execution petition in the column concerning

making an appeal to superior Court the information furnished

by decree holder is against the fact as it failed to mention the

writ petitions that were filed and pending. It is also stated that

the execution petitions were filed not only by the decree holders

but also by some of the legal representatives of decree holders

without showing any legal heir certificates. It is also mentioned

that the execution petitioners having been gainfully employed

cannot claim wages that were allegedly accrued from the time of

award.

Before the executing Court in the pending execution

petitions, decree holders filed certain execution applications,

namely, E.A.No.812 of 2019 in E.P.No.457 of 2017 and

E.A.No.688 of 2019 in E.P.No.1 of 2018. Those applications

were filed under Order XXI Rule 41 C.P.C., wherein decree

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holders sought for a direction from the executing Court to direct

the judgment debtors to disclose the assets of judgment debtors

in Form-16A Appendix-E. The purpose of filing such

applications is that the execution petitions were filed under

Order XXII Rules 43 and 64 to 66 C.P.C. seeking for attachment

and sale of certain movable properties. As the decree holders

were not aware of the actual assets of judgment debtors, they

moved such execution applications. It is relevant to notice that

the affidavit filed in support of those execution applications

were not sworn and signed by any of the decree holders, but

that was sworn and signed by a learned counsel appearing on

behalf of decree holders. In those affidavits, it is stated that the

deponent is the counsel for decree holders who are alive and

also the counsel for legal heirs for the deceased decree holders.

Despite repeated requests, award was not satisfied by judgment

debtors. After moving execution petitions, judgment debtors

filed counter challenging the award and for the last five years

the execution petitioners have been struggling hard to lead even

their day-to-day life and they are not finding money even to

attend their health requirements and they are in deep financial

crisis and their lives are ruined. It is also mentioned that

during pendency of proceedings before Industrial Tribunal some

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of the petitioners died and after disposal of the proceedings

before Industrial Tribunal some of the petitioners/ decree

holders died. Their legal representatives/legal heirs are in utter

poverty. Judgment debtors are intentionally prolonging the

litigation. Despite the best efforts, the applicants are unable to

find out the particulars of assets of the judgment debtors. It is

therefore those applications are moved seeking for directions.

Judgment debtors did not file their counters. In such

circumstances, in E.A.No.688 of 2019 and E.A.No.812 of 2019

learned Principal District Judge at Visakhapatnam passed

orders on 25.11.2019. Both the applications are allowed stating

that for the reasons mentioned in the affidavits those two

applications are allowed. Those two orders are under challenge

in C.R.P.Nos.216 of 2020 and 218 of 2020. All the above facts

are not in dispute.

4. It is alleged that at the first instance judgment debtors

moved C.R.P.No.216 of 2020 and C.R.P.No.218 of 2020 and this

Court granted interim stay on 31.01.2020 and the same was

extended from time to time. Those stay orders were passed in

the context of impugning the orders in E.A.Nos.688 of 2019 and

E.A.No.812 of 2019.

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5. While so, the executing Court went on to hold that the

orders of stay were meant for the execution applications and

were not for stopping the execution petitions and holding an

opinion that there was no stay pending in the execution

petitions, it further proceeded for execution and passed the

orders on 12.02.2020. The order in E.P.No.457 of 2017 in

I.D.No.20 of 2005 is:

"Memo is filed that Honourable High Court granted stay of all further proceedings in E.A.812/2019 vide its orders dated 31.01.2020 in I.A.01/2020 in C.R.P.218/2020. D.Hr‟s counsel received notice and represented that next step in EP may be ordered as the stay relates only to orders in E.A.812/2019. Heard J.Dr long back and taking time after time representing to take instructions. Very long time is given to make submissions. Hence no further time is given. As there is no tenable ground not to proceed with execution and there is no order of stay in E.P. execution is proceeded. Issue warrant under Order 21 Rule 43 of CPC. Call on 12.03.2020."

Similar order was passed in E.P.No.1 of 2018 in I.D.No.20 of

2005 also. In such circumstances, judgment debtors had filed

C.R.P.Nos.1012 of 2020 and 1061 of 2020 questioning the

correctness of the orders of the executing Court. On

01.09.2020 and on 24.09.2020 respectively this Court passed

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orders staying all further proceedings in the execution petitions.

It is in that context, these two revision petitions are here.

6. The revision petitioners mainly contend that their primary

objection taken in the execution petitions about maintainability

of the execution petitions and the jurisdiction of the executing

Court are to be decided first and without deciding them the

executing Court was proceeding further. Questioning the

award, judgment debtors filed writ petition and seeking for

implementation of the award. Those facts are suppressed in the

execution petitions and that aspect of the matter requires a

decision from the executing Court. It is further contended that

even while the I.D. proceedings were pending, some of the

petitioners died and no legal representatives were impleaded

and such aspect of the matter effects the execution and its

maintainability and without deciding that execution proceedings

should not go further. In the execution applications, there was

no party affidavit but it only an affidavit of a counsel was filed,

which is against Section 30 of the Advocates Act, 1961 since

advocate was to practice and not to depose the facts for a party.

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7. To substantiate the legal contentions, learned counsel for

revision petitioners cited Jai Singh v. Union of India1.

Concerning certain mining activities the questions of royalty

came up and the Government raised a demand. Questioning

that writ petitions were filed and after adjudication they were

dismissed by the Hon‟ble Rajasthan High Court and aggrieved of

it, appeals were preferred before the Hon‟ble Supreme Court of

India. While those appeals were pending, the mining lessees

filed a suit wherein they raised questions that are similar to the

questions they put forwarded in the writs. It was in that

context, the Hon‟ble Supreme Court of India was pleased to hold

that a party cannot pursue two parallel remedies in respect of

the same matter at the same time. Based on this authority,

learned counsel for revision petitioners submits that in the case

at hand, while the decree holders have been seeking

implementation of the award through their writ petition and at

the same time they have put forwarded the award for execution

before a civil Court in the form of execution petitions. Thus,

they are pursuing two legal remedies parallelly.

AIR 1977 SC 898

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8. Learned counsel for revision petitioners cited

V.G.Jagdishan v. M/s. Indofos Industries Limited (Civil

Appeal No.---of 2022 (@Special Leave Petition (C) No.12511 of

2016). That was a case where the question that cropped up was

whether the legal forum at Ghaziabad or at Delhhi was holding

jurisdiction. It was in that context of fact situation their

Lordships of the Hon‟ble Supreme Court of India were pleased to

state that when the issue touches the question of territorial

jurisdiction, as far as possible the same shall have to be decided

first as preliminary issue. On this authority learned counsel for

revision petitioners submit that in the case at hand, judgment

debtors questioned the territorial jurisdiction of the learned

Principal District Judge and by their counter in the execution

petitions requested the Court to first decide the preliminary

issue on that aspect of territorial jurisdiction and without taking

a decision the executing Court was proceeding further.

9. As against the above submissions, learned counsel for

respondents/decree holders submit that every award that was

lawfully passed must result in its satisfaction at the earliest and

when the execution proceedings are initiated they are expected

to be completed within a span of six months and cited Rahul S

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Shah v. Jinendra Kumar Gandhi2. It is then stated that

though the award was passed by the Industrial Tribunal at

Hyderabad, on the application of the decree holders in I.A.No.13

of 2017 under Sections 11 and 10 of the Industrial Disputes

Act, 1947, the Industrial Tribunal transmitted the awards to the

learned Principal District Judge, Visakhapatnam and therefore,

execution petitions initiated at Visakhapatnam are appropriate.

That decree holder can choose the place of execution and

judgment debtors have no right to question it. Objections are

raised by judgment debtors only to stall the execution. Decree

holders are suffering a lot and they are people below the poverty

line. The executions are not taken out personally against the

officers of the judgment debtors, but they are taken out against

the institutions only. It is further argued that in support of the

execution applications law permits the counsel to swear an

affidavit. In support of this, learned counsel cited L.C.

Saptharishi v. E.D. Balasubramaniam3. Section 10 C.P.C.

will apply only to civil suits and do not apply to execution

petitions. It is prayed that the revisions be dismissed or in the

2021 (4) ALT 140

2001 (1) L.W. 130

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alternative they may be remanded to executing Court to decide

the disputes afresh.

10. From the papers placed on record before this Court and

from the rival submissions, it is very clear that various

contentions are raised by judgment debtors about jurisdiction of

the executing Court, pursuing remedies simultaneously one in

the writ Court and another one before the executing Court.

These important contentions are bound to be decided by the

executing Court itself. It is undisputed that these questions

were not decided by the executing Court. Whatever steps the

executing Court took on various execution applications filed

before it could be taken up only when it first of all decides the

preliminary objections raised in Execution Petitions. Since that

was not done, the impugned orders are liable to be set aside and

the matters be remanded to executing Court. The executing

Court shall first decide the preliminary issues raised by the

judgment debtors and then proceed further in accordance with

law. In the light of the view that is now taken, this Court is not

required to decide the other contentions raised by both sides.

However, one contention that is raised by judgment debtors is

about taking an exception to an advocate filing an affidavit in

execution applications instead of a party to the proceedings.

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That aspect of the matter was not really decided by the

executing Court. Therefore, it is not appropriate for this Court

now to decide that aspect. The executing Court need also to

address that question and is to dispose of that question in

accordance with law while also considering a judgment of

Division Bench of this Court in G.Krimina Murthy v.

Hemalatha Chit Funds Pvt. Ltd.4. It needs a mention that

when the executing Court finds counters from judgment debtors

raising a point about its jurisdiction and legal efficacy of

permitting execution proceedings, the same required

consideration before taking further steps in the execution

petition. However, without taking a decision on such aspects

when the executing Court entertained certain execution

applications and when they were allowed and when they were

questioned before this Court by filing revisions and when the

stay orders were passed by this Court, the purport of the stay

has to be properly appreciated by the executing Court. It is a

little difficult to appreciate the orders of the executing Court

that the stay orders pertain to execution applications only and

not pertaining to execution petitions. It is that view point of the

executing Court that forced the judgment debtors to move the

2006 (3) ALT 416

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other two revisions before this Court. While the execution

petitions seek attachment and sale of movable properties the

execution applications intended only to know the assets of the

judgment debtors in the form of an affidavit. Those execution

applications were ordered by the executing Court which means

it was proceeding further in execution. It is in that context stay

was granted. Thus, the purport of the stay is to stay further

steps in the execution. However, executing Court was of the

view that the stay was confined to execution applications, which

in this Court‟s understanding is incorrect. All the questions

raised in these revisions about death of certain decree holders

during pendency of matters before Industrial Tribunal and

death of some more decree holders subsequent to the award

and the legal consequences following in these respects and as to

whether appropriate legal representatives were brought on

record at appropriate stages are all some of the contentions

raised, which the executing Court has to address itself and

proceed further in accordance with law. Both parties are at

liberty to raise all their contentions in the Execution

Proceedings.

11. Therefore, all the Civil Revision Petitions are allowed and

the impugned orders are set aside and the matters are remitted

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back to the executing Court for fresh disposal keeping in mind

the observations that are made in the earlier paragraphs of this

order. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 22.11.2022 Ivd

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THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION Nos.1061, 216, 218 and 1012 of 2020

Date: 22.11.2022

Ivd