M/s. Jainsons Automobiles (P) Ltd. vs Sanjeev Kulshreshtha and Others

L.N. Mittal, J.—Judgment debtor (JD) No. 1 M/s. Jainsons Automobiles (P) Ltd. has filed this revision petition under Article 227 of the Constitution of India assailing order dated 24.10.2011 passed by the executing court thereby dismissing objections filed by JD nos. 1 and 3 (petitioner and proforma respondent No. 3) in the execution proceedings initiated by respondent No. 1-decree holder (DH) Sanjeev Kulshreshtha against the petitioner and proforma respondents No. 2 and 3. Suit filed by respondent No. 1 against petitioner and proforma respondents No. 2 and 3 was decreed by trial court vide judgment and decree dated 28.3.2006 Annexure P/3 directing the defendants to reinstate the plaintiff in service with all consequential benefits and back wages. Respondent No. 1 DH has filed execution petition for executing the said decree.

JDs No. 1 and 3 filed objections Annexure P/4 alleging that the decree is not executable because relief of specific performance of contract of personal service could not be granted in view of sections 14 and 34 of the Specific Relief Act, 1963 (in short, the Act) and therefore, jurisdiction of the civil court to pass the decree was barred.

DH by filing reply Annexure P/5 controverted the objections filed by JD nos. 1 and 3.

Learned executing court vide impugned order dated 24.10.2011 has dismissed the objections filed by JDs No. 1 and 3. Feeling aggrieved, only JD No. 1 has filed this revision petition.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioner relying on judgment of Hon''ble Supreme Court in Shri Vidya Ram Misra Vs. Managing Committee, Shri Jai Narain College, contended that in view of section 14 of the Act, contract of personal service could not be ordered to be performed. The contention cannot be accepted. The defendants initially contested the suit by filing written statement. Consequently, all objections available to the defendants are deemed to have been adjudicated and negatived by the judgment and decree Annexure P/3. The aforesaid objection could have been raised by the defendants in the written statement during the pendency of the suit. The same cannot be raised in the execution petition.

Counsel for the petitioner relying on judgments of Hon''ble Supreme Court in Union of India Vs. Swaran Singh and others, ; Jaipur Development Authority Vs. Mahavir Housing Coop. Society, Jaipur and Others, Sunder Dass Vs. Ram Prakash, and Rafique Bibi (D) by Lrs. Vs. Sayed Waliuddin (D) by Lrs. and Others, contended that the aforesaid objection can be raised even in execution proceedings because the court which passed the decree lacked jurisdiction to pass it. The contention is misconceived and untenable. The civil court which passed the decree Annexure P/3 did not lack inherent jurisdiction to pass the decree in question after adjudication of suit filed by respondent No. 1, Consequently, the aforesaid objection cannot be raised in the execution proceedings and could have been raised during pendency of the suit. In the instant case, even assuming for the sake of argument only that decree Annexure P/3 is vitiated in view of provisions of sections 14 and 34 of the Act, the decree at best, may be said to be erroneous and not null and void ab-initio. Consequently, aforesaid objection cannot be taken in execution proceedings to challenge the decree. Above mentioned judgments of Hon''ble Supreme Court are not applicable to the facts of the instant case.

JDs are playing with the system of administration of justice. They have already filed application for setting aside ex-parte judgment and decree Annexure P/3 as admitted by counsel for the petitioner. At the same time, they have raised frivolous objections in the execution proceedings. Consequently, the petitioner has to be burdened with costs for indulging in this frivolous and luxury litigation. For the reasons aforesaid, I find no perversity, illegality or jurisdictional error in impugned order of the executing court so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is meritless and frivolous and is accordingly dismissed with Rs. 10,000/- as costs to be paid to respondent No. 1-decree holder in the execution proceedings.