Civil Revision No.1120 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1120 of 2011(O&M) Date of Decision: February 24, 2011 The Kurukshetra Central Cooperative Bank Ltd. Through its Managing Director .....Petitioner v. Satish Kumar and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Pardeep Solath, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.4682-CII of 2011 Application is allowed subject to all just exceptions Civil Revision No.1120 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for quashing of impugned order dated 28.1.2011, Annexure P1, passed by learned Civil Judge, Senior Division, Kurukshetra in execution petition. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned Executing Court. Facts relevant for the decision of present revision petition are that a suit for a decree of declaration to the effect that respondent no.1- plaintiff is a regular and confirmed employee of petitioner and defendant nos.1 to 3 and that he is legally entitled for arrears, difference of pay bonus, allowances, increments, seniority and all other legal benefits with 18% interest per annum from the defendants from the date of his appointment, i.e. 6.6.1979, as per Haryana Government Rules with consequential relief of mandatory injunction directing the defendants to regularize the services of Civil Revision No.1120 of 2011(O&M) -2- the plaintiff and consider him as regular and confirm employee under the defendants and pay him all arrears, differences of pay, bonus, allowances, increments, seniority and all other legal benefits with 18% per annum interest from the date of his appointment, i.e., 6.7.1979. The suit was contested by present petitioner-defendant and respondent nos.2 to 4. However, the same was decreed in favour of respondent no.1-plaintiff vide impugned judgment and decree dated 31.1.1997 by learned trial Court declaring respondent no.1-plaintiff as regular and confirmed employee under the defendants. Defendants were also directed to release the arrears of pay and other consequential benefits to plaintiff and he be considered as regular and confirmed employee from the date of initial appointment and the arrears of pay and other consequential benefits be paid to the plaintiff within three months from the date of decree, failing which the defendants were held liable to pay the interest @ 12% per annum. The judgment and decree was challenged by one of the defendants by way of appeal. However, appeal was dismissed. Regular second appeal was also filed against dismissal of the appeal by learned first appellate Court and however, the same was also dismissed by this Court. Thereafter, the present execution petition was filed by respondent no.1-decree holder in the year 2005 and however, the same remained unsatisfied. Earlier some objections were filed by one of the defendants, i.e., defendant no.4, which were dismissed by learned Executing Court. Another objections were filed by the present petitioner and respondent nos.2 and 3, which were dismissed by learned Executing Court by observing as under:- “8. After having given a thoughtful consideration over the rival submissions of both the sides, this Court is of the considered view that the present execution petition had been filed by DH on 6.6.1997 on the ground that his suit bearing No.1209/96 was decreed vide judgment and decree dated 21.1.1997 but judgment debtors had not complied with the Decree therefore, it was prayed that the decree in question be executed either by attaching the moveable property of the JDs or by detaining them into civil imprisonment for not obeying Civil Revision No.1120 of 2011(O&M) -3- the decree intentionally. 9. It is worthwhile to mention here that the civil suit No.1209/96 was filed by plaintiff/DH Satish Kumar against four defendants including present objectors No.1,2 and 4 and that civil suit was contested by defendant No.3 by filing his separate written statement whereas defendants No.1, 2 and 4 did not file their written statement despite being represented by their counsels rather adopted the written statement of defendant No.3 in toto and ultimately the suit of plaintiff/DH was decreed against all the defendants. Thereafter, the defendant No.3 preferred an appeal against judgment and decree dated 31.1.1997 and that appeal was also dismissed by the Court of Sh.NC Nahta, the then learned ADJ, Kurukshetra vide judgment and decree dated 24.5.1997 and even that appeal had also been pursued by present objectors as their respective counsel continued to appear before the learned Appellate Court. Thereafter, feeling aggrieved by judgment and decree dated 24.5.1997 the defendants approached to Hon'ble High Court in RSA No. 1845 of 1997 but the same too was dismissed by Hon'ble High Court vide order dated 8.7.1997. Meaning thereby that although, present objectors did not file their separate written statement but they adopted the written statement of defendant No.3 in toto and remained to contest the suit on the same grounds as were taken by defendant No.3 and they were sailing in the same boat. The present objections were very much in the knowledge of the objectors but they did not raise as such at the earliest available opportunity rather these objections were taken by them through defendant No.3 and the same have been decided on merits upto Hon'ble High Court. Therefore, at this stage, it cannot be presumed that the objectors did not avail any opportunity for raising their objections. 10. Not only this, when defendants/JDs did not comply with the decree dated 31.1.1997 despite loosing their stand upto Hon'ble High Court then present DH had to file the present execution petition claiming the relief which has already been Civil Revision No.1120 of 2011(O&M) -4- discussed and this execution petition was filed against all the defendants of civil suit and then defendant No.3 i.e. Barna Co- operative Society Limited through its Secretary filed objections but those objections were dismissed by executing Court vide order dated 4.6.1998. In spite of that the JD No.3 did not comply with the decree and he filed again similar objections and those objections as well as objections filed by present objectors are in verbatim and these objections have been imported from the former objection petition. Those objections of defendant No.3 were dismissed by executing Court vide order dated 10.4.2006 but even than the decree was not executed and defendant/ JD No.3 approached to Hon'ble High Court against the dismissal of his objections. The Civil Revision No. 6424 of 2006 filed by JD No.3 was dismissed by Hon'ble High Court on 14.10.2009 and then a SLP was filed in Supreme Court against the order of Hon'ble High Court but that SLP also meted with the same result and the same was dismissed on 11.5.2010. Meaning thereby that the similar objections have already been decided upto Hon'ble Supreme Court but the defendants have not stopped to file such frivolous objections again and again. 11. It is worthwhile to mention here that when first objections of the JDs were dismissed by the executing Court on 4.6.1998 then the learned Predecessor of this Court had issued show cause notice to JDs/respondents for not complying with the decree but that order was not taken seriously by them. Thereafter, again show cause notices against the defendants were issued by this court and then Sh.Atma Ram, Secretary Barna Co-operative Society appeared on behalf of defendant No.3 and sought one month's time for the payment of DH vide his statement dated 21.7.2010 but on 25.9.2010 he suffered another statement to the effect that Assistant Registrar Co- operative Society and Registrar Co-operative Society should be summoned in this case as they are principal officers, and consequently these JDs were summoned then Sh.Yogesh Civil Revision No.1120 of 2011(O&M) -5- Juneja, Managing Director, Kurukshetra Central Co-operative Bank representing defendant No.4 appeared in person, who is now objector, and then he had sought 45 days time for the arrangement of payment to DH. On 7.12.2010, Sh.Yogesh Juneja, Managing Director of Kurukshetra Central Co-operative Bank as well as Additional Registrar, Co-operative Society Haryana suffered another statement to the effect that amount lying in account No.774 i.e. Rs.2,48,438/- and in account No.225 amount Rs.4,80,000/- be released in favour of DH. Meaning thereby that when Sh.Yogesh Juneja appeared before the Court in compliance of show cause notice then he suffered his specific statements admitting the liability to pay the arrears and undertaken that the arrears of DH shall be disbursed if some time is given to him but instead of paying the amount of DH he has filed these objections which have already been decided on merits upto Hon'ble Supreme Court. 12. Keeping in view the above facts and circumstances of the case, this Court has reached on a conclusion that executing Court cannot go behind the decree and the objections, which have been raised by objectors at this stage, could have been taken only while filing their written statement and now these objections are hopelessly time barred as have been taken after a lapse of more then 13 years. Further more, when the decree dated 31.1.1997 has been passed against all the defendants including the present objectors, then the court has held bound all the defendants to pay the arrears of the DH. If the present objectors had any grievance against the decree dated 31.1.1997 then it was their solemn duty to challenge the validity of decree at first instance. But despite being represented by their counsel before the Courts they never raised these objections, hence, at this belated stage, when the objections have finally disposed of and decree dated 31.1.1997 has attained finality, the objectors have no locus-standi and they are estopped from filing the present objections. Consequentially, the objections of JD Nos. 1,2 and 4 are hereby dismissed being devoid of any merits, time Civil Revision No.1120 of 2011(O&M) -6- barred and principle of resjudicata is applicable, because the JD's have not complied with the decree despite of almost 14 years and they are delying the same intentionally by filing up frivolous objections therefore, JDs No. 1,2 and 4 are burdened with costs of Rs.2000/-. Now JDs No.1,2 and 4 be summoned in this case, to appear in person, and to show cause as to why they should not be sent to civil imprisonment for willful disobedience of decree which has been upheld even by Hon'ble High Court of Punjab and Haryana also. Notices be sent for 15.2.2011.” It has been contended by learned counsel for the petitioner that petitioner has already complied with the decree. However, he has failed to satisfy this Court as to in which manner the decree has been satisfied. Rather clear findings have been given by learned Executing Court that decree has not been satisfied, despite the fact that the same has become final upto this Court. Respondent no.1-plaintiff is fighting for his right for the last 14 years even after obtaining decree in his favour and despite that the same is not being satisfied. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 24.2.2011 (Ram Chand Gupta) meenu Judge