1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5518 OF 2009 WRIT PETITION NO. 5519 OF 2009 AND WRIT PETITION NO. 5520 OF 2009 Late Shri Krishnaji Vishnu Prabhune, Since deceased through heirs : Mrs. Kusum Krishnaji Prabhune & Ors. .. Petitioners (in all petitions) Vs The State of Maharashtra. .. Respondent (in all petitions) ­­ Shri P.M. Pradhan for the Petitioners. Shri S.N.Patil, A.G..P. for Respondents CORAM : A.S.OKA, J. DATE : 6TH APRIL, 2010 ORAL JUDGMENT : . By an order dated 5th October, 2009, the parties were put to notice that the Petitions will be decided finally at the stage of admission. The Petitions arise out of the same execution proceedings and therefore, the same can be conveniently disposed of by a common order. 2. The litigation has a chequered history. The Petitioners are the legal representatives of the original Plaintiff. The original Plaintiff was 2 penalised in the departmental inquiry held against him. A Civil suit was filed by the Plaintiff for various reliefs. The suit came to be dismissed. An appeal preferred by the Plaintiff was partly allowed and it was directed that a part of the suspension period from March, 1956 to June, 1958 should be treated as duty period. There was a Second Appeal carried to this Court by the original Plaintiff. The Second Appeal was allowed and the order dated 5th November, 1963 reducing the original Plaintiff to the minimum of the grade was directed to operate as one time reduction taking effect on 8th November, 1963 and not as a permanent reduction. This Court directed that the Plaintiff will continue to get all benefits like annual increments in the pay scale as also the benefits of various revisions of pay scales and Dearness Allowances. This Court directed the Trial Court to calculate the amount due and payable to the Plaintiff in terms of the decision of this Court from 8th March, 1963 till the date of retirement of the Plaintiff. The exercise in that regard was ordered to be completed on or before the 1st March, 1987. A Special Leave Petition was preferred by the original Plaintiff but the same was disposed of by the Apex Court by a judgment and order dated 2nd August, 1989. The Petition was disposed of with a direction that the consequential terminal benefits as referred to in Paragraph 12 of the judgment of this Court will include all benefits including the promotional benefits which the Petitioner may be found legally entitled to. It appears that the execution application was filed by the Original Plaintiff in the year 1987. On 9th December, 1997, the Executing Court passed an order directing the State Government to 3 consider the case of the original Plaintiff for grant of exemption from passing departmental examination on the basis of the date of the person who is next Junior to him who has been granted exemption. The State was also directed to calculate the pension with interest as per the G.R. from the respective due dates on or before 31st January, 1998. The order clarifies that the G.R. means the Government Resolution. 3. It appears that a further order was passed by the Executing Court on 9th October, 1998. The Executing Court noted that the State Government has ignored the orders passed by the Courts including that of the Apex Court and therefore, a reasonable inference can be drawn that the State Government wants to disobey the orders of the Court. Therefore, the following order was passed by the Executing Court on 9th October, 1998. “[a] J.D. Government shall pay interest at the rate of 18% p.a. compounding monthly on all amounts which will be found due, from the date of this order.” 4. It appears that the original Plaintiff died during the pendency of the execution application. An application was made by the legal representatives of the Plaintiff at Exhibit – 221 seeking a direction against the State Government to pay interest due and payable upto 30th June, 2001 of Rs.7,11,780.20 ps. with further direction to pay interest for subsequent period till the final payment. The said application was opposed by the 4 D.T.O. as well as by the Forest Department by filing a reply. By the judgment and order dated 31st January, 2002, the said application was allowed and the State Government was directed to deposit the interest as calculated in the order below Exhibit ­221. It appears that the Review Petition No.1 of 2002 was preferred by the State Government and the Forest Defendant for review of the order passed below Exhibit­221. By the judgment and order dated 21st November, 2005, the said Review Petition was disposed of. The operative part of the said order reads thus : ­ “The order below Exh.221 in Special Darkhast No. 36/97, is reviewed to the extent of awarding of interest by the Court in pursuance of order by Executing Court, dated 9.10.98” 5. The matter did not rest there. There were further applications filed in the execution application. An application was filed by the legal representatives of the Plaintiff at Exhibit – 228. On 21st June, 2007, the Executing Court passed an order directing that the hearing of the execution application is expedited. The prayers (a), (b) and (c) in the said application were rejected and the legal representatives of the Plaintiff were directed to certify the amounts recovered from the State Government within a period of 15 days. The application was rejected as the decree holder made calculation of amount by including interest thereon contrary to the order passed on Review Petition No. 1 of 2002. A Review Petition No.1 of 2002 was preferred by the legal representatives of the Plaintiff praying for review of the order below Exhibit­228 by contending that the 5 said application ought to have been allowed in its entirety. An application was made by the legal representatives of the Plaintiff at Exhibit – 253 seeking a direction to pay the dues under the decree. By an order dated 6th February, 2009, the Review Application made by the Petitioners was rejected. There was a further direction issued to the Decree Holder to submit outstanding dues arising out of the benefits under the decree. The application at Exhibit – 253 was also disposed of. There is a further order passed on 2nd March, 2009 by the Trial Court by which the learned Trial Judge observed that outstanding benefits have been recovered by the decree holder and there is no outstanding benefit and therefore, the Darkhast was marked as satisfied. 6. In the Writ Petition No. 5518 of 2009, there is a challenge to the order dated 6th February, 2009 passed by the Executing Court by which the Review Application filed by the Petitioners and the application at Exhibit­253 were disposed of. There is also a challenge to the order passed on 21st November, 2005 to the order on review Petition No.1 of 2002 filed by the State Government. 7. In the Writ Petition No.5519 of 2009, there is again a challenge to the same orders dated 6th February, 2009 and it was prayed that the application at Exhibit – 228 be allowed. In the third Petition ( Writ Petition No.5520 of 2009 ), there is a challenge to the order dated 2nd March, 2009 by which the Darkhast was disposed of. 6 8. The learned counsel appearing for the Petitioners submitted that the order dated 9th October, 1998 passed by the Executing Court directing payment of interest was neither challenged in a superior Court nor a review was applied for. He submitted that the State Government has applied for review of the order dated 31st March, 2002 passed below Exhibit­221. He submitted that by the order dated 21st November, 2005, the order passed below Exhibit – 221 was not disturbed. But it was directed that the said order was reviewed to the extent of awarding interest as per the order dated 9th October, 1998. He submitted that in the absence of challenge to the order dated 9th October, 1998, the State Government is duty bound to pay interest as directed by the said order. 9. The learned AGP submitted that neither under the orders of this Court or the Apex Court any interest was payable to the Plaintiff. He submitted that the effect of the order dated 21st November, 2005 is that the earlier direction to pay interest has been reviewed. He submitted that as there was no decree passed for payment of interest, the order directing payment of interest amounts to going behind the decree and therefore to that extent, the Executing Court rectified the mistake with which no interference is called for in writ jurisdiction. 10. I have given careful consideration to the submissions. It must be noted here that while allowing the Second Appeal filed by the 7 Original Plaintiff, a direction was given to the Trial Court to calculate the dues on or before 1st March, 1987. The Apex Court modified the said order by clarifying that the consequential terminal benefits granted by this Court will include promotional benefits to which the Plaintiff may be found entitled to. By an order dated 9th December, 1997, the Executing Court directed the State Government to submit calculation of pension with interest as per the Government Resolution from the respective due dates. The calculations were to be submitted on or before 31st January, 1998. While passing further order on 9th October, 1998, the Executing Court found that there was no compliance of the earlier orders and therefore, a direction was issued to pay interest at the rate of 18% p.a. on the amount due and payable as on that date. By the Application at Exhibit­221, the legal representatives of the Plaintiff submitted the calculation of interest payable upto 31st June, 2001 in terms of the earlier order and sought direction against the State to deposit the said amount. The said application was allowed by the order dated 31st January, 2002 by passing the following order. “i) Application at Exh. 221 is allowed. ii) Defendant – State Government is ordered to deposit the interest amount as calculated in Exh. 221 and explicited in annexures 1 to 18 thereof in Court within one month from the date of this order without fail.” 11. In Paragraph 5 of the order passed below Exhibit – 221, the learned Trial Judge referred to the order dated 9th October, 1998 by which 8 the State Government was ordered to pay interest. It was specifically observed that the orders dated 9th December, 1997 and 9th October, 1998 prevail and the defence taken by the judgment debtor was contrary to the said orders. Thereafter, the Court proceeded to allow the application at Exhibit­221. Perusal of the order dated 21st November, 2005 in Review Petition no.1 of 2002 passed by the Trial Court shows that in Paragraph 13, the Trial Court noted that in the application at Exhibit – 221, the interest has been calculated as per the order dated 9th October, 1998. In the Paragraph 14 of the order, the learned Trial Judge observed that the order dated 9th October, 1998 directing the State Government to pay interest at the rate of 18% per annum appears to be erroneous and the Court had no power to grant penal interest in addition to the costs awarded in the decree. Paragraph 15 of the order reads thus: ­ “15. Considering such observations, I hold that to the extent of calculation of interest as per order of executing Court dated 9.10.98, this review petition is allowed. I, therefore, give my partly affirmative finding to point no. 1 and proceed to pass the order:” 12. At this stage, it will be necessary to consider the observations made by the Trial Court in its order dated 6th February, 2009. The Trial Court has interpreted the order dated 21st November, 2005 to mean that:­ “On reading of the order of review application filed by the State bearing No.1/2002 dated 21­11­2005 there is no any ambiguity appears regarding awarding of interest by way of alternation in rate of interest. The order is so specific regarding review to the extent of awarding of 9 interest, it means entire order passed by way of order dated 9­10­1998 below Exh.1 regarding interest was reviewed. Hence it amounts to refusal of interest. I also held that there was no any order of the superior court regarding awarding of interest. There is no order in decree regarding awarding of interest.....” (Emphasis added) 13. Thus, interpretation put by the Trial Court to the order dated 21st November, 2005 passed on review application filed by the State Government is that the entire direction for payment of interest was quashed and set aside. 14. The effect of the impugned order dated 21st November, 2005 is that the legal representatives of the decree holder will not be entitled to interest as per the order dated 9th October, 1998. It must be noted here that at no stage, the State Government challenged the order dated 9th October, 1998. In the application at Exhibit­ 221 which was filed long back after the order dated 9th October, 1998 was passed , the calculations were made as per the said order dated 9th October, 1998. It is pertinent to note that the State Government did not seek review of the order dated 9th October, 1998 but sought the review of the order below Exhibit­221. The order below Exhibit­ 221 permitted for payment of interest as per the order dated 9th October, 1998. In the absence of any challenge to the order dated 9th October, 1998, the said order could not have been modified or vacated. The result of the order dated 21st November, 2005 is that the State Government will have to pay amounts mentioned in Exhibit – 221 10 without interest payable as per the order dated 9th October, 1998. The said order cannot have the effect of setting aside or nullifying the order dated 9th October, 1998 which was never challenged by the State Government for all these years. It appears that the Petitioners were advised to file further applications including an application for review of the order dated 21st November, 2005. Now by these Petitions, the challenge is to the order dated 21st November, 2005 and to all subsequent orders. In the absence of any challenge to the order dated 9th October, 1998, there was no justification for the Trial Court to pass the order dated 21st November, 2005 and therefore, the said order will have to be set aside being illegal and the result will be that the order below Exhibit – 221 will stand restored and the Judgment Debtors are bound to comply with the said order. Hence all further orders stand modified. As darkhast cannot be marked as satisfied without complying with the order below Exhibit – 221, order dated 2nd March, 2009 will have to be set aside. 15. Hence, I pass the following order. (a) The order dated 2nd March, 2009 is set aside and Special Darkhast No. 36 of 1987 is restored to the file. The order dated 21st November, 2005 passed in the Review Petition No.1 of 2002 is quashed and set aside and the Review Petition stands dismissed on the ground that the order dated 9th October, 1998 was 11 never challenged by the Respondents. (b) Thus, the order passed below Exhibit – 221 dated 31st January, 2002 stands restored. The subsequent orders passed by the executing Court stand modified accordingly. (c) Time of three months is granted to the Respondents to comply with the said order. (d) The Petitions are partly allowed in above terms with no orders as to costs. (A.S.OKA, J)