Appeal No 81 of 1990
From the Judgment and Order dated 731989 of the Rajas than High Court in SB Civil Misc Second Appeal No 2 of 1976
Guman Mal Lodha Sushil K Jain BP Aggarwal and Sudhanshu Atreya for the Appellant
CM Lodha and Surya Kant for the Respondents
The Judgment of the Court was delivered by K RAMASWAMY J
1
Heard learned counsel for both sides and special leave is granted
This appeal by the auction purchaser is against the judgment of the High Court of Rajasthan Jaipur Bench dated March 7 1989 made in SB Civil Misc Second Appeal No 276
The facts though many relevant to dispose of the appeal are stated as under 3
SShri Gokulchand and Rekhchand Respondents Nos
5 and 6 herein defendants 2 and 3 in OS No 3759 on the file of the Court of the Civil Judge Jhalawar obtained in another suit an ex parte 27 money decree to recover Rs555710 against Bal Mukund and brought to sale the joint family house which is the disputed property in the present litigation
Mohanlal his minor son and his widow filed objections under Order 21 Rule 58 CPC which were rejected
The sale was confirmed on October 24 1958 and sale certificate was issued on November 28 1958
The respondents filed OS No 3759 under Order 21 Rule 63 CPC to set aside the sale
The Trial Court by its judgment dated December 5 1961 dismissed the suit but on appeal the District Judge at Kotah allowed the appeal and decreed the suit for resti tution of the plaint schedule property since possession had in the meantime been taken
Second Appeal No 9165 filed in the High Court was abated as a whole since Mohanlal died on May 1 1968 and his legal representatives being Respond ents Nos
2 to 4 were not brought on record by substitution
When execution was levied for restitution though the appel lant raised several objections to its executability but challenge was confined to two grounds namely the decree passed by the District Judge is a nullity as he lacked pecuniary jurisdiction to entertain the appeal against the decree in the suit admittedly valued at Rs15000 under Section 211a of the Rajasthan Civil Courts Ordinance 1950 and it was entertainable by the High Court and sec ondly the decree being a declaratory one was incapable of execution notwithstanding the direction for restitution of the plaint scheduled property
The Executing Court dismissed the objection petition but on appeal the order of the Executing Court was reversed
On further appeal the High Court allowed the same set aside the appellate order and directed the appellate court to transfer it to the appropri ate Civil Court for execution as per law
As against it the present appeal has been filed
The contention that the decree passed by the District Judge Kotah on appeal is a nullity is devoid of substance
It is true that under Section 211a of the Rajasthan Civil Courts Ordinance 1950 the District Court is empowered to entertain an appeal against the decree of a Trial Court of the value only upto Rs10000 and by operation of sub section b of section 211 the appeal would lie only to the High Court as the value of the suit was admittedly Rs15000
But this is a suit laid under Order 21 Rule 63 CPC to set aside the sale by declaring the decree of Rs555710 to be invalid and does not bind them
In Radha Kunwar vs Reoti Singh AIR 19 and Phul Kumar vs Ghanshyam Mishra 35 IA 22 PC it was held that the value of the amount of decree is the value for the purpose of the suit under Order 21 Rule 63 CPC
Therefore merely because the valuation of the pro 28 perty sold in execution had been put at Rs15000 the valuation of the suit under Order 21 Rule 63 CPC cannot be treated to be that valuation
Accordingly we hold that Section 211a of the Ordinance is attracted
Therefore the decree of the Appellate Court in CA No 15761 on the file of the Court of the District Judge Kotah is not a nullity
The only other question is whether the plaintiff is entitled to restitution of the property
Once the decree which was the subject matter of execution was declared to be not binding on the plaintiffs Mohanlal and his mother Bhuli Bai the execution sale would not bind them and as a result they became entitled to restitution
The decree does admit tedly contain a direction for restitution
Therefore it is not a mere declaratory decree but coupled with a decree for restitution of the plaint scheduled house
Accordingly the decree is executable
To a question put by the Court whether in view of the long pendency of the proceedings it could not be equitable that the appellant should pay the proper value of the house or deliver possession thereof the learned counsel for the appellant fairly stated that whatever amount be fixed by this Court the appellant is prepared to pay the same
The learned counsel for the respondents on the other hand rely ing upon the statement made in the objections dated April 28 1973 filed by the appellant maintained that he had then claimed only a sum of Rs11900 in all and the appellant would be entitled only for that amount
On the other hand the appellant having been in possession and enjoyment of the property the respondents are entitled to the mesene prof its
On the facts and in the circumstances and in considera tion of the fact that the litigation is pending for a long period we are of the view that justice and equity would be met if we direct the District Court Kotah to assess the prevailing market value of the plaint scheduled house and the site as on date and direct the appellant to pay the value thereof within a time to be fixed by him
If the respondents have not drawn the balance of the sale amount in the original suit filed by SShri Gokulchand and Rekhchand and after full satisfaction was recorded the appellant is entitled to withdraw the said balance amount
In case the amount was already withdrawn the appellant is entitled to deduct the same from the amount fixed by the District Court
In case the appellant fails to pay the value of the property assessed by the District Court as directed above there shall be a direction for restitution of the plaint scheduled property as per the decree of the Appellate Court in CA No 15761
The appeal is accordingly allowed but in the circumstances without costs
PS S Appeal allowed


Summary:
Respondent was recruited as a Senior Scientific Officer in the Defence Science Service which was subsequently tri furcated and reconstituted
The Government of India enhanced the superannuation age of Scientific and Technical personnel of one of the newly constituted units upto 60 years by an order dated 24121985
The respondent who was working in one of the other units of the reconstituted service filed an application in the Central Administrative Tribunal seeking a direction that he was entitled to the benefit of enhanced age of superannua tion upto 60 years as made applicable to the other unit which allowed the application
Hence this appeal by the Union of India
Dismissing the appeal this Court HELD 1
In view of Rule 12 of the Defence Aeronautical Quality Assurance Service Rules 1979 the benefit of en hanced age of superannuation given to the members of one unit was also available to the members of the other unit since the said condition of service was not expressly pro vided for in the Service Rules
At the time of reconstitu tion of the service no option was given to the employees working in the different units to opt for one or the other of the units
Those who were already working in either of the three units were deemed to belong to the respective newly constituted service
Therefore their service condi tions will have to run parallel and no discrimination can be made between them by an unilateral action
The classifica tion made between them further has no rational basis and no nexus of such classification to 21 the object sought to be achieved has been shown
In the circumstances the denial of the benefit of the enhanced superannuation age to the members of one unit while the same is granted to the members of the other units amounts to discrimination violative of Article 16 of the Constitution
23A F G H 24A 2
The decision of the Tribunal is both proper and valid
The appellants are directed to reinstate the respond ent in service who would continue in service till he at tains the age of 60 years
24A C D