A. K Banerji, J. - (1.) BY means of this writ petition, the petitioner has challenged the orders dated 7-9-1991, passed by Addl. Munsif, Gorakhpur rejecting the petitioner's objection under section 47 CPC and the order dated 21-1-1992, passed by the VII Additional District Judge, Gorakhpur (Respondent No. 1) rejecting the revision filed by the petitioner against the said order dated 7-9-1991, with the consent of the parties, the writ petition is being finally decided at the admission stage.
(2.) BRIEFLY stated the relevant facts are that the respondent No. 1 Ashok Kumar Snvastava filed a *uit agaiinst the National Insurance Company (Petitioner) ;n the court of Munsif, Gorakhpur alleging that he was appointed as an Inspector by ths defendant Insurance Company on Probation of one year vide la: appointment letter dated 2-12-1980 with effect from 19-9-1980. The appointment letter stated that the probation was extendable by another 12 months. According to the plaintiff all of a sudden he received a notice dated 13 i-1982 terminating his services with effect from the same date i.e. 13-3-1982. It was alleged by him rjhat he had not received any letter extending his Probation after one year and neither could Probation be extcviei to any period lesser than 12 mconths; It is this order of termination which was challenged by the plaintiff-respondent No. 1 by means of the aforesaid suit. The plaintiff pleaded in the plaint of the said suit that the notice terminating his services was illegal, unconstitutional and void. It was stated that the order of termination was not a termination order simplicitor but had cast a stigma co the plaintiff and thus amputed to a punishment within the meaning of, the General Insurance Conduct, Discipline and Appeal Rules, 1975. It was further pleaded that 30 days notice was not given to the petitioner and neither any pay in lieu of notice was given, consequently the notice was null and void. The plaintiff prayed for the following reliefs : "1. By decree of this Court it be declared that the notice of the defendant dated 13-3-82 terminating the services of the plaintiff is void, illegal and not a binding on the plaintiff and the plaintiff continues to be in the service of the defendant as on 13-3-82 with all the benefits attached to the post and is entitled to recover all the emolument attached to the post of Probationary Inspector subsequent to 13 3-1982. 2. Cost of the suit be awarded to the plaintiff. 3. The plaintiff be awarded any other relief to which he is deemed entitled." On summons being issued the defendant Insurance Campany appeared and filed their written statement. While denying the plaint allegations, they inter alia pleaded that the suit was not maintainable and the notice terminating the services of the plaintiff was perfectly valid and legal. They also pleaded that the suit was barred under section 34 of the Specific Reliefs Act. Further, they pleaded that no stlgm3 was cast on the plaintiff and the order terminating his services was a simple order of termination and not a punishment as alleged. They played that the suit should be dismissed with special cost. However, after filing the written statement, the defendant failed to appear or to participate to the proceedings of the suit despite time being granted to them. The Court, therefore, ordered the suit to proceed ex-parte. No effort was made by the defendant to set aside the order to proceed ex-parte and ultimately the suit was decreed ex-parte on 25-1-1991 The Court declared that the notice dated 13-3-1982 terminating the services of the plaintiff was illegal, inoperative and the plaintiff was entitled to all the benefits available to him as in service. The plaintiff respondent No. 1, thereafter, put his decree in execution by claiming a sum of Rs. 1,02,861/- (Rupees One lac two thousand eight hundred sixty one) as arrears of salary for the period 13-3-1982 to 30-4-1991. Subsequently, he amended the execution application and claimed a sum of Rs. 3, 90,342/- on account of arrears of salary. The petitioner filed two objections under section 47 CPC against the execution application and the amendment application. 3n its objections, the petitioner inter alia stated that the ex-parte decree dal:ed 25-1-1991 was of declaratory nature and the same was not legally executable and the execution application was not maintainable. It was further stated that the decree was not tor any specified sum and therefore, not executable. The plaintiff was not a Government servant and the provisions off Article 311 of the Constitution was not applicable in case of the plaintiff-decree-holder, on the contrary the plaintiff was simply an employee of the defendant judgment debtor. His services were not terminated contrary to any statutory provision and therefore, he was not entitled to any declaration from the Civil Court. The execution application was defective, not maintainable and deserves to be dismissed In the second objection, the petitioner stated that the decree holder was not in the employment of the petitioner with effect from 13-3 -1982 and hence not entitled to any amount Besides, the amount calculated by the decree- holder was incorrect, arbitrary and without any basis Further, the execution of the decree at the instance of the decree-holder, cannot proceed unless he pays court fee on the amount of Rs 3,90,342/-.
(3.) THE executing court after considering the objections filed by the petitioner vide its order dated 7-9-1991 rejected the said objections by holding that the decree was not purely a declaratory decree but a consequential relief had also been claimed in the same hence the decree was executable. It was also held that execution can also be of an ascertained as well as on an unascertained amount. It further held that the National Insurance Company was a statutory body and has been shown in the schedule of the General Insurance Business (Nationalization) Act, 1972 and hence governed by the General Instance Business (Nationalization) Act Since the plaintiff had alleged contravention of statute on the part of the defendant hence a declaratory decree could be granted and the decree passed was neither void nor a nullity. It was further held that section 11 of the Court Fees Act was not applicable in Che facts of the present case and the decree for consequenital relief was executable. Aggrieved against the aforesaid order dated 7-9-1991 passed by the executing court, the petitioner filed a civil revision against the said order before the District Judge, Gorakhpur which was transferred to the court of the VII Additional District Judge. Gorakhpur who heard the matter and dismissed the revision vide his order dated 20-1-1992. The present writ petition is directed against the impugned order dated 7-9-1991 passed by the IV Additional Munsif, Gorakhpur and the order dated 20-1-1992, passed by the respondent No. 1.;