IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 CRP.NO. 759 OF 2007() --------------------- {IN EP 20/07 OF SUB COURT, MANJERI IN AS.4/1978 & AS 4/1979 OF THE CALICUT UNIVERSITY APPELLATE TRIBUNAL} .................... REVN. PETITIONER(S)/RESPONDENT: ------------------------------------------ CORRESPONDENT AND CHAIRMAN, M.E.S CENTRAL COLLEGE COMMITTEE, M.E.S OFFICE, KOZHIKODE. BY ADV. SRI.A.P.CHANDRASEKHARAN,SR. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR RESPONDENT(S)/PETITIONER: ---------------------------------- M.SYED MUHAMMED, S/O.K.P.MOIDEEN 16/273, FATHIMA BUILDING, FRANCIS ROAD, KOZHIKODE. ADV. SRI.C.P.MOHAMMED NIAS THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ALONG WITH CRP NO.969 OF 2007 ON 29/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.NO. 759 OF 2007() :: :: ORDER ON I.A.No.2034/07 IN CRP.NO. 759 OF 2007 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 29.3.2010. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. --------------------------------------- C.R.P.Nos.759 & 969 of 2007 --------------------------------------- Dated this the 29th day of March, 2010 O R D E R Both these revisions arise from the order passed by the learned Sub Judge, Manjeri in E.P.No.20/07 in A.S.No.4/78 and 4/79 of the Calicut University Appellate Tribunal {for short 'the Tribunal'}. C.R.P.No.759/07 is filed by the judgment debtor, the Manager of an Educational Society, and C.R.P.No.969/07 by the decree holder, a former employee of one of the Educational Institutions run by the society, managed by the judgment debtor. Consequent to disputes regarding the promotion and also monetary benefits due to the employee, he had approached the Tribunal for redressal of his grievance. His claim was partly allowed directing the management to post him as Junior Superintendent with effect from 9.2.1970. Another relief canvassed in his petition that he should be treated as on duty for a period of two years during which, according to him, he had been restrained from attending the duty was turned down by the appellate authority. To the extent the relief was denied, the employee preferred a revision before this C.R.P.Nos.759 & 969 of 2007 :: 2 :: court. The management too aggrieved to the extent of the order directing promotion to the employee filed another revision. Meanwhile, the employee had moved another appeal seeking his promotion from an anterior date which, however, was declined by the appellate authority. That order was challenged by him preferring another revision. All these three revisions, after being heard together, were disposed of by this court by order dated 22.8.1985. The order passed by the appellate authority was modified to some extent directing the employee to approach the Directorate of Collegiate Education to determine the date applicable for his promotion in the post of Junior Superintendent. However, his entitlement for promotion as Junior Superintendent from 19.2.1970 up to 1.4.1972, during which an unqualified person was posted as Junior Superintendent by the management overlooking his claim, which had been upheld by the appellate authority was confirmed by this court. While disposing the revisions, this court had also directed to pay a sum of Rs.5,000/- by the manager to the employee, in view of the untenable C.R.P.Nos.759 & 969 of 2007 :: 3 :: contentions raised throughout the proceedings denying the monetary claims of the employee. Pursuant to the orders passed in the revision in accordance with the statutory provisions, the appellate authority modified its judgment effecting appropriate amendment in tune with the orders passed in the revision. Amendment of its judgment was so made by the appellate authority on 18.8.1989. It is the case of the judgment debtor that pursuant to that amendment, without notice to him, a second amendment was made on the basis of a review petition filed by the employee. By an order passed by the appellate authority on 10.5.1990 certain amendments were again made in its previous order totally overlooking the orders passed in revision, according to the judgment debtor. The second amendment made by order dated 10.5.1990 is vitiated by fraud is the case of the management. Whatever that be, when the employee moved for execution of the amended order dated 10.5.1990 filing an execution petition before the Sub Court, Kozhikode. It was challenged by the management C.R.P.Nos.759 & 969 of 2007 :: 4 :: before this court contending that the above court had no jurisdiction to execute the order passed by the appellate authority. This court has ordered for transfer of the execution petition to the court having jurisdiction i.e. Sub Court, Manjeri and dispose of the petition moved by the management - judgment debtor. After such transfer, hearing both sides, the execution court quantified the amount to be paid to the employee/decree holder in tune with the amended order passed by the appellate authority. A sum of Rs.1,72,302/- was determined as the arrears of salary with interest due to the employee from the management. The order so passed by the execution court is impeached as incorrect by the management filing C.R.P.No.759/07 in which among other contentions, the amended order passed by the appellate authority dated 10.5.1990 is also challenged as vitiated by fraud. The judgment debtor/employee has preferred the other revision contending that the execution court has not correctly quantified the amount due in accordance with the amended order of the appellate authority. C.R.P.Nos.759 & 969 of 2007 :: 5 :: 2. I heard the counsel on both sides. 3. At the time of hearing, it has been brought to my notice that during the pendency of this revision, the management/judgment debtor has deposited the entire amount before the execution court as determined by that court and full satisfaction has been recorded. When that be so, the question emerges for consideration is whether any challenge against the execution of the decree raised by the management in the present revision survives for consideration. The learned counsel for the judgment debtor/management contended that since the amended order dated 10.5.1990 had been impeached as vitiated by fraud the deposit made and recording of satisfaction by the execution court would not preclude the management from attacking the amended order as illegal. It is submitted by the learned counsel for the judgment debtor that the amendment dated 10.5.1990 contains some provisions which are not covered by the order passed by the appellate authority and also the order of this court in the previous revisions. Inviting my attention of the C.R.P.Nos.759 & 969 of 2007 :: 6 :: amended order, learned counsel submitted that reference has been made of two employees with a statement that the decree holder shall be treated as senior to such employees, though it was not a matter considered before the appellate authority or canvassed in the revisions before this court. Those employees were also not parties to the proceedings is the submission of the counsel. The amendment order passed on 10.5.1990, according to the counsel, was without notice to the management. From the submissions made by the counsel, it appears, the merit of the amended order dated 10.5.1990 is sought to be assailed on the ground of fraud in the revision preferred against the order of the execution court. If at all, the amended order passed on the review petition was vitiated by fraud it was open to the management/ judgment debtor to move before the Tribunal by taking appropriate proceedings as provided by law. Even after being given notice of the execution being pursued on the basis of the amended order, it appears, that order was not challenged even when a writ petition was moved before this court contending that the court C.R.P.Nos.759 & 969 of 2007 :: 7 :: before which the execution petition was moved had no jurisdiction to entertain the execution petition. But the management/judgment debtor, at present, seeks to assail the amended order collaterally while challenging the order passed by the execution court to which the execution petition has been transferred by this court. A transferee court even if it had been the proper court to which the execution petition ought to have been presented, was bound to execute the amended order. The execution court could not have avoided execution of the decree on the ground that the amended order is vitiated by fraud as contended by the management. The challenge now raised against the amended order dated 10.5.1990, which was executed by the employee, and that too after recording the satisfaction of the decree on deposit of the amount cannot be approved. Even when satisfaction was recorded, it seems, the judgment debtor has not canvassed for any reservation to impeach the amended order by taking appropriate proceedings before the appellate authority. So much so, I find the revision filed by the C.R.P.Nos.759 & 969 of 2007 :: 8 :: management/judgment debtor, C.RP.No.759/07 deserves only to be dismissed. I do so. 4. So far as the other revision filed by the employee is concerned, (C.R.P.No.969/07) that also deserves the same fate as the order executed has been satisfied by the deposit made by the judgment debtor. That revision is also dismissed. The learned counsel for the decree holder seeks for a direction to the execution court for release of the amount in deposit. It is open to the petitioner to move an application for releasing the amount, and if any such application is moved, the execution court shall pass appropriate orders releasing the amount without delay, provided there is no charge or encumbrance over the amount in deposit. Civil Revision Petitions are disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//