Delhi High Court
Shambhu Nath Das & Ors. vs Director Of Education & Ors. on 26 May, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Ex.P. No. 85/2016
% 26th May, 2015
SHAMBHU NATH DAS & ORS. ..... Decree Holders
Through: Mr. Rajiv Tyagi, Mr. Sambhav Gupta and
Mr. Gyanendra Sharma, Advocates.
versus
DIRECTOR OF EDUCATION & ORS. ..... Judgment Debtors
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This execution petition is filed by persons who call themselves
decree holders. The order which is however sought to be executed is not an
order in a suit and the order which is sought to be executed is the final Judgment
dated 6.3.2013 passed in W.P.(C) No. 2132/2011.
2. Provisions of the Code of Civil Procedure, 1908 (CPC) pertaining
to the execution of orders and decrees are for execution of decrees and orders
passed in suits. Section 2 of the CPC defines both 'decree' and 'order' as per
sub-Section 2 and sub-Section 14 thereof. A decree under Section 2(2) CPC is a
final determination of some or all the matters in controversy in a suit. An order
as defined in Section 2(14) CPC is an order which is not a decree of the court.
Ex.P. No.85/2016 Page 1 of 5
In any case, both the decrees and the orders are determination of rights in the
suit.
3. In my opinion, the present execution proceedings are misconceived
and have been filed on concealment of facts, and are accordingly liable to be
dismissed for the following reasons:-
(i) A final judgment in a writ petition is not a decree or order which is
capable of execution proceedings under CPC. Such a judgment is enforced by
invoking the contempt jurisdiction of this Court.
(ii) Execution proceedings under CPC are with respect to decrees or
orders passed in proceedings governed by CPC i.e suits.
(iii) Final judgments of writ petitions, if not complied with, cannot be
treated as decrees for seeking the execution in execution proceedings by
applying CPC. I may note that it is not as if that the present execution
proceedings seek execution of costs which are imposed by the court as per a
final judgment, and which costs can be taken as money decree for the purpose
of execution. Section 141 CPC is clear that CPC does not apply to write
petitions under Article 226 of the Constitution of India.
4. Learned counsel for the decree holders, during the course of
hearing, has conceded to the fact that these very decree holders who have filed
these execution proceedings, have already filed a contempt petition and which is
pending disposal. Clearly, therefore, these execution proceedings filed
Ex.P. No.85/2016 Page 2 of 5
simultaneously and parallel with contempt proceedings are not maintainable
because there can only be one proceeding for implementation of a final
judgment of a court and not two parallel proceedings. These execution
proceedings are also therefore liable to be dismissed not only on account of
concealment of facts but also on the ground that proceedings for
implementation of the Judgment dated 6.3.2013 in W.P.(C) No.2132/2011 is by
filing a contempt petition filed by these very decree holders and which is
pending before this Court.
5. Learned counsel for the decree holders has sought to argue that
Section 36 CPC allows execution of final judgments passed in writ petition and
for which purpose, counsel for the decree holders has placed reliance upon two
judgments of the Supreme Court being Food Corporation of India Vs. S.N.
Nagarkar (2002) 2 SCC 475 and Puran Singh and Others Vs. State of Punjab
and Others (1996) 2 SCC 205.
6. The arguments urged on behalf of the decree holders by their
counsel are without any legal basis whatsoever. Firstly, the judgment in the
case of Puran Singh (supra) has no application whatsoever to the issue at hand
because in para 11 of that judgment which is relied upon only talks of powers of
a court hearing writ petitions being wider to the ordinary civil powers of an
ordinary civil court. I therefore fail to understand as to how this judgment in the
case of Puran Singh (supra) will be applicable.
Ex.P. No.85/2016 Page 3 of 5
7. The other judgment in the case of Food Corporation of India
(supra) relied upon by the decree holders is also not applicable for the reason
that the facts of the said case show that on a writ petition being allowed the writ
petition's final order was to be implemented. Whereas the employer claimed
that the judgment was implemented in totality for the benefits of pay being
given from the date of joining, the successful writ petitioner also claimed
nominal seniority, and which was in issue. In this regard the successful writ
petitioner had earlier filed contempt proceedings which were dismissed by the
competent court, and therefore, it was held that once earlier contempt
proceedings were dismissed, only independent proceedings would lie if any
independent rights existed in favour of a successful writ petitioner. Reliance is
placed upon by the counsel for the decree holders on paras 10 and 19 of the
judgment, but I fail to understand as to how they will at all help the decree
holders in the present case because it is nowhere held in this judgment that a
final judgment of a writ court can be executed by filing execution proceedings
under CPC, especially when the order sought to be executed is not an order in
the nature of imposition of costs. Substantial relief granted in writ proceedings
cannot be treated as costs merely because monetary reliefs are allowed in favour
of a successful writ petitioner.
8. Learned counsel for the decree holders then sought to place
reliance upon the orders passed by a Division Bench of this Court in EFA(OS)
Ex.P. No.85/2016 Page 4 of 5
No.7/2014 and it is argued that EFA(OS) No.7/2014 was preferred against the
final Judgment of the writ court dated 6.3.2013, and counsel for the decree
holders wanted to draw the attention of this Court to the Order of the Division
Bench dated 22.5.2015 in EFA(OS) No.7/2014, however, it is noticed that after
passing of the orders which are relied upon, another Division Bench of this
Court in the same proceedings being EFA(OS) No.7/2014, by its Order dated
12.2.2016 directed the present decree holders to file appropriate proceedings
including if advised contempt proceedings, and which contempt proceedings are
admittedly filed and pending. Therefore, it is not permissible for the decree
holders to contend that any earlier orders prior to 12.2.2016 in EFA(OS)
No.7/2014 enable the decree holders to file these proceedings.
9. In view of the above, it is clear that the execution proceedings are
wholly misconceived and are accordingly liable to be and are dismissed.
MAY 26, 2016 VALMIKI J. MEHTA, J.
ib
