Delhi High Court
Uma Devi vs Union Of India & Ors on 28 September, 2018
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ 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
ORDER
% 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 not to be guided by the Registry.
10. Be that as it may, it has been enquired from the counsel as to how an
appeal under Section 104 of the CPC lies.
11. The counsel for the appellant / decree-holder has gone through Order
XLIII Rule 1 of the CPC but which also does not provide for an appeal
against the order as the impugned order.
12. I have in Arjun Thapan Vs. Anita Thapan 2018 SCC OnLine Del
10105, Gautam Modi Vs. Pravin Chandra Modi 2018 SCC OnLine Del
11197 and Sumeet Saluja Vs. A.K. Hab Europe 2018 SCC OnLine Del
10072 dealt in detail with the subject and have held that though prior to the
amendment of the CPC of the year 1976 all orders in execution were
appealable but vide the said amendment, the remedy of appeal against
orders in execution is confined to a few provisions only and which do not
include an order as the order impugned in this appeal.
13. The appeal is thus rejected.
14. Needless to state, the appellant shall have liberty in accordance with
law.
Dasti.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 28, 2018
'gsr'..
