# Ajai Kumar v. State of U.P

- **Citation:** (2020) 2 ILRA 1196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-13
- **Case number:** Service Single No. 5994 of 2000
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajai-kumar-v-state-of-u-p-45644
- **Pages:** 4

## Headnote

A. Service Law- Application for Execution
of decree for payment of salary -
Allahabad High Court Rules, 1952: Rule
1(viii) of Chapter-II read with Rule 6 of
Chapter VII; Limitation Act, 1963: Article
136, 137 - Maintainability - Application
held to be not maintainable being barred by
limitation.

Writ Petition rejected. (E-4)

Present application prays for decree for
execution of judgment dated 01.04.2005,
passed by this Court in the present writ
petition.

## Text

1196 INDIAN LAW REPORTS ALLAHABAD SERIES
the same can be conducted and concluded
with promptness preferably within a
period of three months and any appropriate
order can be passed strictly in accordance
with law within one month thereafter. It is
needless to say that the petitioner shall
cooperate
with
the
departmental
proceedings, if the same is initiated
inasmuch as this is sole prerogative of the
disciplinary
authority
to
initiate
the
departmental inquiry against the petitioner.
It is being clarified that this Court is not
directing to conduct the departmental
inquiry against the petitioner..

16. In view of the above, I am of the
considered opinion that the impugned
order dated 17.12.2019 and 26.12.2019 are
not sustainable in the eyes of law,
therefore, both the orders are hereby
quashed.

17. The disciplinary authority is
directed to reinstate the petitioner in
service and pay her regular salary and
other emoluments as and when the same
falls due.

18. It is also directed that the
appropriate orders regarding earlier leave
of the petitioner may be passed strictly in
accordance with law.

19. In view of above, writ petition is
allowed.
----------
(2020)02ILR A1196

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.02.2020

BEFORE
THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 5994 of 2000
Ajai Kumar ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
G.S.L. Varma, Kaushal Kishore

Counsel for the Respondent:
C.S.C.

A. Service Law- Application for Execution
of decree for payment of salary -
Allahabad High Court Rules, 1952: Rule
1(viii) of Chapter-II read with Rule 6 of
Chapter VII; Limitation Act, 1963: Article
136, 137 - Maintainability - Application
held to be not maintainable being barred by
limitation.

Writ Petition rejected. (E-4)

Present application prays for decree for
execution of judgment dated 01.04.2005,
passed by this Court in the present writ
petition.

(Delivered by Hon'ble Saurabh Lavania, J.)

C.M. Application No. 8686 of 2020
(Application for Execution).

1. Heard Sri G.S.L. Varma,
learned counsel for the petitioner and
Sri Manish Pandey, learned State
counsel.

2. The present application has
been filed under Rule 1 (viii) of
Chapter-II read with Rule 6 of Chapter
VII of the Allahabad High Court Rules,
1952. It is for preparation of decree for
execution
of
the
judgment
dated
01.04.2005, passed by this Court in the
present writ petition.

3.

The
application,
under
consideration, was presented in the
Registry of this Court on 21.01.2020.
2 All. Ajai Kumar Vs. State of U.P.
1197

4. From the prayer made in the
application, under consideration, which is
quoted below, it is evident that the relief
sought is for preparation of decree for
execution of the judgment and order dated
01.04.2005, passed by this Court in the
present writ petition.

"Wherefore,
it
is
most
respectfully prayed, that this Hon'ble court
of justice may graciously be pleased to
direct the Registrar to prepare the decree
on the basis of judgment dated 01.04.2005
and sent the same to the Civil court of the
Competent Jurisdiction for the execution
of the decree to make payment of the due
salary to the petitioner w.e.f. 14.06.2000
till date, in exercise of powers conferred
under Rule 1 (VIII) of Chapter II read with
Rule 6 of Chapter VII of the Allahabad
High Court Rules 1952, otherwise the
applicant/petitioner will suffer irreparable
loss and injury so that his life livelihood
may not be further ruined."

5. For the purposes of disposal of the
present application, it would be proper to
mention that as per Article 137 provided in
the Schedule to Limitation Act, 1963 (in
short "Act, 1963"), an application for
which no period of limitation is provided
under the Act, 1963 shall be filed within
three years from the date when the right to
apply accrues, the same reads as under:-

Description
of
application
Period
of
limitati
on
Time
from
which period
begins to run
137. Any other
application for
which no period
of limitation is
provided
Three
years
When the right
to
apply
accrues.
elsewhere
in
this Division.

6. In the present case, in my view,
the right to prefer/move application for
preparation of decree was accrued to the
petitioner on 04.05.2005, the date of the
judgment passed in the writ petition filed
by the petitioner, and as such the
application, under consideration, in my
view, itself is not maintainable being
highly barred by limitation.

7. For disposal of the present
application, it is also relevant to mention
that in view of the limitation provided
under Article 136 of the Act, 1963 which
is quoted below, an application for
execution of any decree (other than a
decree granting a mandatory injunction) or
order of any Civil Court can be filed
within 12 years from the date when the
decree or order becomes enforceable or
where the decree or any subsequent order
directs any payment of money or the
delivery of any property to be made at a
certain date or at recurring periods when
default in making the payment or delivery
in respect of which execution is sought,
takes place.

8. Proviso to it says that an
application
for
the
enforcement
or
execution of a decree granting a perpetual
injunction shall not be subject to any
period of limitation.

Description of
application
Period
of
limitati
on
Time
from
which
period
begins to run
136. For the
execution
of
any
decree
Twelve
years
[When]
the
decree or order
becomes
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
(other than a
decree
granting
a
mandatory
injunction) or
order of any
civil court.
enforceable or
where
the
decree or any
subsequent
order
directs
any payment of
money or the
delivery of any
property to be
made
at
a
certain date or
at
recurring
periods
when
default
in
making
the
payment
or
delivery
in
respect of which
execution
is
sought,
takes
place:
Provided
that
an application
for
the
enforcement or
execution of a
decree granting
a
perpetual
injunction shall
not be subject to
any period of
limitation.

9. It appears from the judgment and
order dated 01.04.2005 and the relief
sought in the present application, quoted
above, that the petitioner for his money
claim has approached this Court by means
of the present application, filed in the
Registry of this Court on 21.01.2020.

10. Keeping in view the aforesaid
facts of the case and the provision as
envisaged in Article 136 provided in the
Schedule to the Act, 1963, in my view, the
application of the petitioner for execution
of the judgment for money claim would
also be not maintainable being barred by
limitation.

11. In addition to the above, with
regard to compliance of the order dated
01.04.2005, passed by the writ Court,
earlier the petitioner filed the Contempt
Petition No. 2280 of 2009, which was
dismissed on 18.02.2010. The order dated
18.02.2010 reads as under:-

"This Court in Writ Petition
No.5994 (S/S) of 2000 has passed an order
on 01.04.2005, whereby the order was
made for making the payment of salary.

This contempt petition was filed
on 21.10.2009 which is time barred as per
section 20 of the Contempt of Court Act
1971 read with proviso of Rule 5 of the
Contempt of Court Allahabad High Court,
Rules 1977.

The contempt petition is not
maintainable being time barred. The same
is
accordingly
dismissed
as
not
maintainable."

12. Aggrieved by the order dated
18.02.2010, the petitioner filed the Special
Appeal Defective No. 146 of 2010, which
was also dismissed vide judgment and
order dated 15.05.2018, after condoning
the delay in filing the appeal. The order
dated 15.05.2018 reads as under:-

"Heard learned counsel for the
appellant and learned Standing Counsel.

This special appeal has been
preferred by the appellant against the
order dated 18.02.2010 passed by the
learned Single Judge by means of which
learned Single Judge has proceeded to
reject the contempt petition preferred by
the appellant as the same was time barred
2 All. Chandra Kumar Misra Vs. State of U.P. & Ors.
1199
 as contemplated under Section 20 of the
Contempt
of
the
court
Act,1971(hereinafter referred to as, 'the
Act of 1971') holding that the contempt
petition was preferred at a belated stage.

Learned
counsel
for
the
appellant submits that petition was moved
under Article 215 of the Constitution of
India as there is no limitation provided
under Article 215 of the Constitution of
India.

It is to be noted that an application
can be moved only under Section 12 of the Act
of 1971. No other provision is existing on the
basis of which the appellant can claim benefits
in respect of the period of limitation. If the
appellant was well advised, then, the
application ought to have been moved under
Article 215 of the Constitution of India in the
pending writ petition but that was never done.
Further, appellant has to proceed before this
Court under Section 12 of the Act of 1971 as
the said powers are vested with this Court but
the same was never invoked by the appellant.

Therefore,
in
the
aforesaid
circumstances, this special appeal is liable to
be dismissed and is hereby dismissed as the
same has no merit."

13. After the order dated 15.05.2018
passed in the Special Appeal Defective No.
246 of 2010, the petitioner moved the
application for review of the judgment and
order dated 15.05.2018. The same was rejected
by the Division Bench of this Court vide
judgment and order dated 20.11.2019, which
reads as under:-

"Heard Mr. G.S.L. Verma, learned
counsel for appellant-applicant as well as Mr.
Arun Kumar, learned counsel for respondents
no. 2 and 3 on the application for review and
condonation of delay application.

This review application has been
filed against the order dated 15.5.2018
whereby the special appeal has been dismissed
on merit.

Learned
counsel
for
reviewapplicant submits that the findings recorded by
the appellate Court are perverse and not
sustainable in law.

We are of the considered view that
we in the coordinate Bench cannot look into
the findings recorded by another coordinate
Bench. The scope of review is very limited. The
review application as such deserves to be
dismissed.

In view of above, we do not find any
reason to condone the delay. The application
for condonation of delay (CMA No. 27063 of
2019) and application for review (CMA No.
82290 of 2018) are rejected."

14. Keeping in view the aforesaid
facts and circumstances of the case as
well as the findings recorded by this
Court with regard to limitation provided
for
moving
an
application
for
preparation of decree and for execution
of the order, this Court finds that the
present application has no merit.

15. Accordingly, the application, in
issue, is rejected.

16. The matter is consigned to
record.
----------
(2020)02ILR A1199

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.01.2020

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Service Single No. 14092 of 2018

Chandra Kumar Misra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents