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Petitioner: GLADSTONE, WYLLIE & CO, LTD VS Respondent: BADSHA MIAH
P L D 1960 Dacca 305
P L D 1960 Dacca 305
Before Akbar and Hasan, JJ
GLADSTONE, WYLLIE & Co, LTD.‑Appellant
versus
BADSHA MIAH‑Respondent
Second Miscellaneous Appeal No. 10 of 1958, decided on 11th August 1959.
Declaratory decree‑Suit for‑Suit for bare declaration that dismissal from service was illegal‑Decree obtained in such suit not executable‑Civil Procedure Code (V of 1908), S. 47 & O. XXI, r. 32‑Specific Relief Act (I of 1877), S. 42.
Where a person files a suit against his master for a bare declaration that his dismissal from service was illegal, with out at the same time asking for consequential relief such as damages, if a declaration to that effect is granted by the Court, it cannot be executed in accordance with any of the provisions of the Civil Procedure Code, 1908. Such a declaration might vindicate the honour of the servant, but for its execution he has to depend on the good sense of his master.
Andhra University v. Korada Durga Lakshmi Mancharam A I R 1951 Mad. 870 ref: Nurul Amin and A. R. Khan for Appellant. Ahmad Sobhan for Respondent.
JUDGMENT
AKBAR, J.‑This appeal is directed against an order of the District Judge, Chittagong, dated the 20th December 1957, reject ing the appellant judgment‑debtor's objection to the execution of a decree passed in Other Suit No. 104 of 1953 of the Second Court of Munsif, Chittagong.
2. The facts of the case may be briefly stated as follows:
Badsha Mia who was a motor driver in Gladstone, Wyllie & Co., Ltd. (hereinafter referred to as the Company), was dismissed from service. He then filed a suit for a declaration that his dismissal was illegal and prayed for reinstatement in his old post. The said suit was decreed as follows:‑----
"That the suit be decreed on contest without costs. Dis missal of plaintiff from the service of Messrs Gladstone, Wyllie & Co., Ltd., by their letter, dated 27th July 1951, communicated to the General Secretary, Chittagong Mercantile Employees' Association, be declared unjust and wrongful. Defendant is hereby directed to reinstate the plaintiff in its service as driver or in any other post with all attendant benefits. The reinstatement shall be with effect from 5th July 1951, and the period up to this date shall be considered as his leave without pay."
3. The defendant Company did not prefer any appeal against the said decree. The plaintiff, however, filed an application under Order XLVII, rule 1 of the Code of Civil Procedure for deletion of the words "or in any other post" occurring in the decree. During the pendency of the application for review, the Company offered the plaintiff the post of a peon but he refused the offer.
4. After the disposal of the review application, the plaintiff decree‑holder put the decree ~ into execution in Other Execution Case No. 72 of 1956. The judgment‑debtor filed an objection under section 47 of the Code of Civil Procedure to the effect that there being no vacancy in the post of a driver they offered him the post of a peon which he declined and thus they substantially com plied with the order of the Court. They also pointed out certain defects in the execution petition; namely, that the relief sought in the execution was vague and indefinite and that the mode in which assistance of the Court was required was not stated in the tabular statement.
5. On 9th May 1957, the executing Court, while over‑ruling the objections, granted time to the decree‑holder to remove the defects in the tabular statement by 17th May 1957, and this was done.
6. The judgment‑debtor then filed an appeal against the order, dated 9th May 1957. The Appellate Court, however, affirm ed the order of the executing Court and dismissed the appeal.
7. Hence the judgment‑debtor filed this Second Miscellaneous Appeal against the order of the Appellate Court.
8. When this appeal came up for hearing before Chow dhury, J., the learned Advocate for the appellant raised the follow ing two points :‑ .
(1) that the decree in question was inexecutable ; and
(2) that the provisions of Order XXI, rule 32 of the Code of Civil Procedure were not attracted to this decree.
On the other hand, the learned Advocate for the respondent con tended that the question whether the decree was executable or not could not be gone into in this appeal. Chowdhury, J., overruled this objection of the respondent‑decree‑holder. He, however, felt doubt if the principles of Order XXI, rule 32 of the Code of Civil Procedure were applicable to this case, and hence he referred the matter to a larger Bench.
9. At the outset, we may observe that we are not impressed by the contention of Mr. Sobhan, the learned Advocate for the respondent that the question of executability of this decree cannot be gone into in this appeal. Chowdhury, J., while dealing with this point, has rightly observed :‑--
"I am unable to accept this contention of the learned Advocate for the respondent as sound, because the contention of the judgment‑debtor throughout is that the decree obtained is not executable."
We, therefore, over‑rule this objection of the learned Advocate for the respondent. Hence the main question for determination in this appeal is :‑Whether the decree in question is executable.
10. Mr. Nurul Amin, the learned Advocate for the Appel lant‑judgment‑debtor, has contended that the decree was declaratary in its term and that, therefore, no execution could issue. Mr. Ahmad Sobhan, the learned Advocate for the respondent, has, however, found it difficult to meet this contention of the learned Advocate for the appellant. He has, therefore, submitted that the judgment debtor would be generous enough to give the decree‑holder some equivalent post in the Company and thus save him from starvation.
11. The decree‑holder filed this suit for a declaration that his dismissal was illegal and prayed for reinstatement in his former post. It is thus clear that the decree was obtained in a declara tory suit. In short, the plaintiff got a declaration of his status. This, however, cannot be executed in accordance with any of the provisions of the Code of Civil Procedure. At one stage, a faint attempt was made to seek the aid of sub‑rule (1) of rule 32 of Order XXI of the Code of Civil Procedure which is as follows:‑--
"Decree for specific performance, for restitution of conjugal rights, or for an injunction :‑
(1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conju gal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attach ment of his property or by both."
12. Now the suit in which the decree has been passed cannot be regarded as a suit for specific performance of a contract. Furthermore, we may observe that in a suit for specific perfor mance of a contract the Court grants such reliefs as are necessary for the contract to be specifically performed and hence the Court can enforce it in the execution. In the present suit, the plaintiff merely sought a declaration of the legal character without asking for consequential relief such as damages. Hence there is no ques tion of any specific performance of the contract.
13. In the case of Andhra University v. Korada Durga Lukshmi Mancharam (A I R 1951 Mad. 870), the question was whether a suit for a bare declaration, namely, that the order of dismissal from service was illegal, was maintainable. The Court, while, holding that such a suit was maintainable, observed at page 875 :‑
"The learned District Judge has, on the other hand, appreciat ed the legal as well as the factual position, a right from the standpoint of legal sense as well as commonsense in holding that the declaration, if granted, would not, although ineffective to bring about the plaintiff's restoration to office except on the good sense of the master, end in 'a futility but in a valuable gain to the plaintiff."
As already stated, in the present suit the plaintiff' sought for a decla ration that leis dismissal was illegal. He did not pray for any damages. Hence the above observation is fully applicable to this case. In other words, this declaration might vindicate his honour e but for its execution he has to depend on the good sense of his master.
14. As Mr. Sobhan has not challenged this proposition of law, it is not necessary to discuss it any further.
15. In the result, we allow this appeal and set aside the orders of the Courts below and dismiss the execution petition. Each party will bear its own costs throughout. The connected Civil Rule No. 177 (SM) of 1958 is discharged but without any order as to costs.
16. We are, however, glad to note that Mr. Nurul Amin, the learned Advocate for the Company, has promised to use his good office to get some employment for the respondent in the appellant Company.
HASSAN, J.‑I agree.
K. B. A. Appeal allowed.