1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.1888 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 The Correspondent, Concodia High School, Nesamony Nagar, Nagercoil, Kanyakumari District. .. Petitioner Vs. D.Sunderaraj .. Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 19.08.2011 passed in Execution Petition No.113 of 2008 in Original Suit No.628 of 1991 by the First Additional District Munsif Court, Nagercoil. For Petitioner : Mr.C.K.M.Appaji For Respondent : Mr.D.Rajendiran ORDER The order dated 19.08.2011 passed in Execution Petition No.113 of 2008 in Original Suit No.628 of 1991 by the First Additional District Munsif Court, Nagercoil is being challenged in the present Civil Revision Petition. 2. The respondent herein as plaintiff has instituted Original Suit No.628 of 1991 on the file of the Court below praying to declare that his transfer made by the defendant is illegal. The trial Court has dismissed the suit. Against the Judgment and decree passed by the trial Court, Appeal Suit No.100 of 1992 has been filed on the file of the first appellate forum. The first appellate forum after hearing both sides and upon reappraising the evidence available on record has dismissed Appeal Suit No.100 of 1992 and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, Second Appeal No.1701 of 1995 has been preferred on the file of this Court. During pendency of Second Appeal No.1701 of 1995, both parties have entered into a compromise by way of incorporating the following terms: "1) that 1st respondent-Management do (agree to) promote the appellant in the forthcoming vacancy in teh post of post graduate teacher (History) in the same management; 2) that the 1st respondent do claim salary from the Education Department and to pay the salary to the appellant https://hcservices.ecourts.gov.in/hcservices/ 2 from 1.6.92 to till date. 3) that the 1st respondent do negotiate with the Education Department to get benefits such as salary etc., from 6.6.91 to 31.5.92 to the appellant; 4) that the 1st respondent the Management do treat the service of the appellant as continuity of service without any interruption or break". 3. On the basis of the terms of compromise, this Court has passed a compromise decree in Second Appeal No.1701 of 1995 and in pursuance of the same, this Court has directed the appellant/plaintiff to withdraw Original Suit No.628 of 1991 after making compliance of the terms mentioned therein. After passing compromise decree in Second Appeal No.1701 of 1995, the present Execution Petition has been filed in E.P.No.113 of 2008 praying to arrest the respondent therein for non-complaince of the terms mentioned in the compromise decree passed in Second Appeal No.1701 of 1995. The Court below has allowed the petition. Against the order passed by the Court below, the present Civil Revision Petition has been preferred. 4. The learned counsel appearing for the revision petitioner/respondent has contended that as per the terms of compromise mentioned in the compromise decree passed in Second Appeal No.1701 of 1995, the revision petitioner/respondent has made all attempts so as to comply with the terms of compromise and there is no mistake on the part of the revision petitioner/respondent, but the Court below without considering the nature of steps taken on the side of the revision petitioner/respondent has erroneously passed the impugned order in Execution Petition No.113 of 2008 and therefore the order passed by the Court below is liable to be interfered with. 5. Per contra, the learned counsel appearing for the respondent/petitioner has contended that as per the terms of compromise, a primordial duty is cast upon the revision petitioner/respondent to claim and disburse salary to the respondent/ petitioner, but the revision petitioner/respondent has not done it as per the compromise decree passed in Second Appeal No.1701 of 1995 and under the said circumstances the present petition has been filed for getting the relief sought for therein and the Court below has rightly passed the impugned order of arrest and therefore the order passed by the Court below need not be set aside. 6. For considering the rival submissions made on either side, the Court has to look into the vital terms of compromise mentioned in the compromise decree passed in Second Appeal No.1701 of 1995, wherein it has been clearly stated that the respondent do claim salary from the Education Department and to pay the salary to the appellant from 01.06.1992 to till date. Further it is directed that the respondent do negotiate with the Education Department to get https://hcservices.ecourts.gov.in/hcservices/ 3 benefits such as salary, etc. from 06.06.1991 to 31.05.1992 to the appellant. Further it has been directed that the first respondent Management do treat the service of the appellant as continuity of service without any interruption or break. 7. From the conjoint reading of the vital terms of compromise decree passed in Second Appeal No.1701 of 1995, the Court can easily come to a conclusion that the revision petitioner/ management should take effective steps for the purpose of claiming salary from the Education Department and to disburse the same to the respondent/petitioner and further the revision petitioner Management should also make necessary endeavour so as to treat break up service as continuous service. Nowhere in the terms of compromise specifically stated about the personal liability of payment of wages, etc. But the specific direction given in the compromise decree is that the revision petitioner Management should make all endeavour so as to get salary from the Education Department and also to convert the break up service as continuous service. 8. In the instant case, on the side of the respondent/petitioner, Ex.P.18 has been filed. Ex.P.18 is a letter addressed to the District Educational Officer, Nagercoil by the revision petitioner/respondent Management, wherein all terms of compromise have been enumerated and finally requested to comply with the same. Therefore it is very clear that on the side of the revision petitioner/respondent Management proper endeavour has been made so as to comply with the terms of compromise. 9. The Court below has proceeded on the basis of terms of compromise and finally decided that the revision petitioner/respondent has completely flouted the terms of compromise mentioned in the compromise decree passed in Second Appeal No.1701 of 1995. The conclusion arrived at by the Court below is totally erroneous. The Court below without seeing Ex.P.18 has passed the impugned order. 10. Since specific directions have been given to the revision petitioner/respondent Management to make all endeavour to get arrears of salary from the Education Department and to disburse the same to the respondent/petitioner and since as per Ex.P.18 proper endeavour has been made on the side of the revision petitioner/ respondent Management, the Court cannot come to a conclusion that the revision petitioner/ respondent has committed wilful default in following the terms of compromise decree passed in Second Appeal No.1701 of 1995. Therefore the approach made by the Court below is erroneous and the order passed by the Court below is liable to be set aside and the matter is liable to be remitted to the file of the Court below with a specific direction that the revision petitioner/ respondent should take effective steps so as to get arrears of salary/continuity of service, etc. With the above observations, this Civil Revision Petition can be disposed of. https://hcservices.ecourts.gov.in/hcservices/ 4 11. In fine, this Civil Revision Petition is allowed without costs and the impugned order passed in Execution Petition No.113 of 2008 in Original Suit No.628 of 1991 by the First Additional District Munsif Court, Nagercoil is set aside and the petition filed in Execution Petition No.113 of 2008 in Original Suit No.628 of 1991 is remitted to the file of the First Additional District Munsif Court, Nagercoil. The revision petitioner/respondent Management is directed to take effective follow up action on the basis of Ex.P.18 and to disburse arrears of salary and also to get possible orders with regard to continuity of service within a period of three months from today. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(AE) /True Copy/ Sub Assistant Registrar To The First Additional District Munsif Court, Nagercoil. +1cc to Mr.C.K.M.Appaji, Advocate Sr.No.45251 C.R.P(NPD)(MD)No.1888 of 2011 and M.P(MD)No.1 of 2011 smn sma/06.1.2012/3c/4p https://hcservices.ecourts.gov.in/hcservices/