THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION Nos.1061, 216, 218 and 1012 of 2020

COMMON ORDER:

C.R.P.No.1061 of 2020 questions the correctness of docket order dated 12.02.2020 of learned Principal District Judge, Visakhapatnam in E.P.No.457 of 2017 in I.D.No.20 of 2005. C.R.P.No.216 of 2020 questions the correctness of order dated 25.11.2019 of learned Principal District Judge, Visakhapatnam in E.A.No.688 of 2019 in E.P.No.1 of 2018 in I.D.No.20 of 2005. C.R.P.No.218 of 2020 questions the correctness of order dated 25.11.2019 of learned Principal District Judge, Visakhapatnam in E.A.No.812 of 2019 in E.P.No.457 of 2017 in I.D.No.20 of 2005. C.R.P.No.1012 of 2020 questions the correctness of order dated 12.02.2020 of learned Principal District Judge, Visakhapatnam in E.P.No.1 of 2018 in I.D.No.20 of 2005.

Judgment debtors are the revision petitioners. Decree holder is the respondent. Common question of fact and law are involved in all the four revisions and all the four revisions are argued by the learned counsel on both sides. In these circumstances, they need be disposed of by this common order.
The facts that are not in dispute are relevant to be noticed here:

On an application moved by the respondent herein in I.D.No.20 of 2005 the Industrial Tribunal-cum-Labour Court (Central) at Hyderabad (for short, "the Industrial Tribunal") passed an award dated 29.04.2014 directing the Food Corporation of India to reinstate 72 contract workers into service with 50% back wages and additionally it ordered to extend the benefit of Direct Payment system to the contract workers. Aggrieved of it, the judgment debtors preferred W.P.No.33452 of 2014 under Article 226 of the Constitution of India wherein the award and its legality was questioned. The said writ petition is pending before this Court. The decree holder under the award also filed W.P.No.23610 of 2015 seeking implementation of the award and the same is pending before this Court. While those writ petitions are pending, the decree holder chose to move execution petitions for execution of the award. They filed E.P.No.457 of 2017 in I.D.No.20 of 2005 and filed E.P.No.1 of 2018 in I.D.No.20 of 2005. Thus, two execution petitions came to be filed for execution of the award. On receipt of the notices, judgment debtors put in their appearance and filed counters in the execution petitions. In the counters judgment debtors questioned the maintainability of execution petitions on various grounds. It is stated that the

Court which passed the award alone is competent to execute but not the Court at Visakhapatnam and therefore, the executing Court has no jurisdiction to entertain the execution petitions. It is categorically averred therein requesting the executing Court to decide the issue of jurisdiction at the first instance as a preliminary issue and only then take decision in the execution petitions. The further contention in the counter include that in the execution petition in the column concerning making an appeal to superior Court the information furnished by decree holder is against the fact as it failed to mention the writ petitions that were filed and pending. It is also stated that the execution petitions were filed not only by the decree holders but also by some of the legal representatives of decree holders without showing any legal heir certificates. It is also mentioned that the execution petitioners having been gainfully employed cannot claim wages that were allegedly accrued from the time of award.

Before the executing Court in the pending execution petitions, decree holders filed certain execution applications, namely, E.A.No.812 of 2019 in E.P.No.457 of 2017 and E.A.No.688 of 2019 in E.P.No.1 of 2018. Those applications were filed under Order XXI Rule 41 C.P.C., wherein decree

holders sought for a direction from the executing Court to direct the judgment debtors to disclose the assets of judgment debtors in Form-16A Appendix-E. The purpose of filing such applications is that the execution petitions were filed under Order XXII Rules 43 and 64 to 66 C.P.C. seeking for attachment and sale of certain movable properties. As the decree holders were not aware of the actual assets of judgment debtors, they moved such execution applications. It is relevant to notice that the affidavit filed in support of those execution applications were not sworn and signed by any of the decree holders, but that was sworn and signed by a learned counsel appearing on behalf of decree holders. In those affidavits, it is stated that the deponent is the counsel for decree holders who are alive and also the counsel for legal heirs for the deceased decree holders. Despite repeated requests, award was not satisfied by judgment debtors. After moving execution petitions, judgment debtors filed counter challenging the award and for the last five years the execution petitioners have been struggling hard to lead even their day-to-day life and they are not finding money even to attend their health requirements and they are in deep financial crisis and their lives are ruined. It is also mentioned that during pendency of proceedings before Industrial Tribunal some

of the petitioners died and after disposal of the proceedings before Industrial Tribunal some of the petitioners/ decree holders died. Their legal representatives/legal heirs are in utter poverty. Judgment debtors are intentionally prolonging the litigation. Despite the best efforts, the applicants are unable to find out the particulars of assets of the judgment debtors. It is therefore those applications are moved seeking for directions. Judgment debtors did not file their counters. In such circumstances, in E.A.No.688 of 2019 and E.A.No.812 of 2019 learned Principal District Judge at Visakhapatnam passed orders on 25.11.2019. Both the applications are allowed stating that for the reasons mentioned in the affidavits those two applications are allowed. Those two orders are under challenge in C.R.P.Nos.216 of 2020 and 218 of 2020. All the above facts are not in dispute.

It is alleged that at the first instance judgment debtors moved C.R.P.No.216 of 2020 and C.R.P.No.218 of 2020 and this Court granted interim stay on 31.01.2020 and the same was extended from time to time. Those stay orders were passed in the context of impugning the orders in E.A.Nos.688 of 2019 and E.A.No.812 of 2019.
While so, the executing Court went on to hold that the orders of stay were meant for the execution applications and were not for stopping the execution petitions and holding an opinion that there was no stay pending in the execution petitions, it further proceeded for execution and passed the orders on 12.02.2020. The order in E.P.No.457 of 2017 in I.D.No.20 of 2005 is:

"Memo is filed that Honourable High Court granted stay of all further proceedings in E.A.812/2019 vide its orders dated 31.01.2020 in I.A.01/2020 in C.R.P.218/2020. D.Hr"s counsel received notice and represented that next step in EP may be ordered as the stay relates only to orders in E.A.812/2019. Heard J.Dr long back and taking time after time representing to take instructions. Very long time is given to make submissions. Hence no further time is given. As there is no tenable ground not to proceed with execution and there is no order of stay in E.P. execution is proceeded. Issue warrant under Order 21 Rule 43 of CPC. Call on 12.03.2020."

Similar order was passed in E.P.No.1 of 2018 in I.D.No.20 of 2005 also. In such circumstances, judgment debtors had filed C.R.P.Nos.1012 of 2020 and 1061 of 2020 questioning the correctness of the orders of the executing Court. On 01.09.2020 and on 24.09.2020 respectively this Court passed

orders staying all further proceedings in the execution petitions. It is in that context, these two revision petitions are here.

The revision petitioners mainly contend that their primary objection taken in the execution petitions about maintainability of the execution petitions and the jurisdiction of the executing Court are to be decided first and without deciding them the executing Court was proceeding further. Questioning the award, judgment debtors filed writ petition and seeking for implementation of the award. Those facts are suppressed in the execution petitions and that aspect of the matter requires a decision from the executing Court. It is further contended that even while the I.D. proceedings were pending, some of the petitioners died and no legal representatives were impleaded and such aspect of the matter effects the execution and its maintainability and without deciding that execution proceedings should not go further. In the execution applications, there was no party affidavit but it only an affidavit of a counsel was filed, which is against Section 30 of the Advocates Act, 1961 since advocate was to practice and not to depose the facts for a party.
To substantiate the legal contentions, learned counsel for revision petitioners cited Jai Singh v. Union of India1. Concerning certain mining activities the questions of royalty came up and the Government raised a demand. Questioning that writ petitions were filed and after adjudication they were dismissed by the Hon"ble Rajasthan High Court and aggrieved of it, appeals were preferred before the Hon"ble Supreme Court of India. While those appeals were pending, the mining lessees filed a suit wherein they raised questions that are similar to the questions they put forwarded in the writs. It was in that context, the Hon"ble Supreme Court of India was pleased to hold that a party cannot pursue two parallel remedies in respect of the same matter at the same time. Based on this authority, learned counsel for revision petitioners submits that in the case at hand, while the decree holders have been seeking implementation of the award through their writ petition and at the same time they have put forwarded the award for execution before a civil Court in the form of execution petitions. Thus, they are pursuing two legal remedies parallelly.

1 AIR 1977 SC 898

Learned counsel for revision petitioners cited V.G.Jagdishan v. M/s. Indofos Industries Limited (Civil Appeal No.---of 2022 (@Special Leave Petition (C) No.12511 of 2016). That was a case where the question that cropped up was whether the legal forum at Ghaziabad or at Delhhi was holding jurisdiction. It was in that context of fact situation their Lordships of the Hon"ble Supreme Court of India were pleased to state that when the issue touches the question of territorial jurisdiction, as far as possible the same shall have to be decided first as preliminary issue. On this authority learned counsel for revision petitioners submit that in the case at hand, judgment debtors questioned the territorial jurisdiction of the learned Principal District Judge and by their counter in the execution petitions requested the Court to first decide the preliminary issue on that aspect of territorial jurisdiction and without taking a decision the executing Court was proceeding further.
As against the above submissions, learned counsel for respondents/decree holders submit that every award that was lawfully passed must result in its satisfaction at the earliest and when the execution proceedings are initiated they are expected to be completed within a span of six months and cited Rahul S

Shah v. Jinendra Kumar Gandhi2. It is then stated that though the award was passed by the Industrial Tribunal at Hyderabad, on the application of the decree holders in I.A.No.13 of 2017 under Sections 11 and 10 of the Industrial Disputes Act, 1947, the Industrial Tribunal transmitted the awards to the learned Principal District Judge, Visakhapatnam and therefore, execution petitions initiated at Visakhapatnam are appropriate. That decree holder can choose the place of execution and judgment debtors have no right to question it. Objections are raised by judgment debtors only to stall the execution. Decree holders are suffering a lot and they are people below the poverty line. The executions are not taken out personally against the officers of the judgment debtors, but they are taken out against the institutions only. It is further argued that in support of the execution applications law permits the counsel to swear an affidavit. In support of this, learned counsel cited L.C. Saptharishi v. E.D. Balasubramaniam3. Section 10 C.P.C. will apply only to civil suits and do not apply to execution petitions. It is prayed that the revisions be dismissed or in the

2 2021 (4) ALT 140

3 2001 (1) L.W. 130

alternative they may be remanded to executing Court to decide the disputes afresh.

From the papers placed on record before this Court and from the rival submissions, it is very clear that various contentions are raised by judgment debtors about jurisdiction of the executing Court, pursuing remedies simultaneously one in the writ Court and another one before the executing Court. These important contentions are bound to be decided by the executing Court itself. It is undisputed that these questions were not decided by the executing Court. Whatever steps the executing Court took on various execution applications filed before it could be taken up only when it first of all decides the preliminary objections raised in Execution Petitions. Since that was not done, the impugned orders are liable to be set aside and the matters be remanded to executing Court. The executing Court shall first decide the preliminary issues raised by the judgment debtors and then proceed further in accordance with law. In the light of the view that is now taken, this Court is not required to decide the other contentions raised by both sides. However, one contention that is raised by judgment debtors is about taking an exception to an advocate filing an affidavit in execution applications instead of a party to the proceedings. That aspect of the matter was not really decided by the executing Court. Therefore, it is not appropriate for this Court now to decide that aspect. The executing Court need also to address that question and is to dispose of that question in accordance with law while also considering a judgment of Division Bench of this Court in G.Krimina Murthy v. Hemalatha Chit Funds Pvt. Ltd. 4. It needs a mention that when the executing Court finds counters from judgment debtors raising a point about its jurisdiction and legal efficacy of permitting execution proceedings, the same required consideration before taking further steps in the execution petition. However, without taking a decision on such aspects when the executing Court entertained certain execution applications and when they were allowed and when they were questioned before this Court by filing revisions and when the stay orders were passed by this Court, the purport of the stay has to be properly appreciated by the executing Court. It is a little difficult to appreciate the orders of the executing Court that the stay orders pertain to execution applications only and not pertaining to execution petitions. It is that view point of the executing Court that forced the judgment debtors to move the

4 2006 (3) ALT 416

other two revisions before this Court. While the execution petitions seek attachment and sale of movable properties the execution applications intended only to know the assets of the judgment debtors in the form of an affidavit. Those execution applications were ordered by the executing Court which means it was proceeding further in execution. It is in that context stay was granted. Thus, the purport of the stay is to stay further steps in the execution. However, executing Court was of the view that the stay was confined to execution applications, which in this Court"s understanding is incorrect. All the questions raised in these revisions about death of certain decree holders during pendency of matters before Industrial Tribunal and death of some more decree holders subsequent to the award and the legal consequences following in these respects and as to whether appropriate legal representatives were brought on record at appropriate stages are all some of the contentions raised, which the executing Court has to address itself and proceed further in accordance with law. Both parties are at liberty to raise all their contentions in the Execution Proceedings.

Therefore, all the Civil Revision Petitions are allowed and the impugned orders are set aside and the matters are remitted

back to the executing Court for fresh disposal keeping in mind the observations that are made in the earlier paragraphs of this order. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J

Date: 22.11.2022 Ivd

Dr. VRKS, J C.R.P.No.1061 of 2020 & Batch