S.U.Khan - (1.) -At the time of hearing no one appeared on behalf of the contesting respondents, hence only the arguments of the learned counsel for the petitioner were heard.
(2.) THE question involved in this writ petition is as to whether execution proceedings pending before civil court for execution of earlier order dated 26.7.1986, passed by Ist Civil Judge, Gorakhpur has been transferred to the Administrative Tribunal by virtue of Section 29 of the Administrative Tribunals Act, 1985 or not. THE relevant portion of the said section is quoted below : "Section 29.-Every suit or other proceeding pending before any Court or other authority immediately before the date of establishment of a Tribunal under this Act being a suit or proceeding, the cause of action, whereon it is based, is such that it would have been if it had arisen after such establishment within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal." The Supreme Court in P. L. Kantha Rao and others v. State of A. P. and others, AIR 1995 SC 807, has held that word 'proceeding' used in Section 29 includes execution. In para 2 of the said authority, it has been held as follows : "In the journey of litigation, there are several stages one of which is realization of the judicial adjudication, which attained finality. The word 'proceeding' though has not been defined under Section 29, it is a comprehensive term." The facts of the instant case are that Prasidh Narain Srivastava, respondent No. 2, filed O.S. No. 49 of 1959 against the petitioner/railways in the Court of Civil Judge, Gorakhpur. The suit was decreed for the first time in second appeal by the High Court on 15.2.1974 (Second Appeal No. 1972 of 1971). Initially, suit had been dismissed by trial court as well as the appellate court. Unfortunately, High Court did not specify the decree. It only said that second appeal was allowed and the suit was decreed. The relief claimed in the suit was for a declaration that plaintiff's dismissal was invalid and for permanent injunction directing the defendant to let the plaintiff work as senior clerk. Prayer for payment of Rs. 4,248 was also made. There is no dispute that said amount was paid after decree of the High Court. After the decree, passed by the High Court, respondent No. 2 was also reinstated in service. Thereafter, he retired in 1980 on reaching the age of superannuation. Respondent No. 2 filed an execution application, which was registered as Execution Case No. 55 of 1982, praying therein that by virtue of decree passed by the High Court, he should be permitted to work till his death. The execution application was allowed on 29.9.1983 by Civil Judge, Gorakhpur. Ist Additional District Judge, Gorakhpur, set aside the said order through the judgment and order dated 16.3.1984, passed in Civil Revision No. 364 of 1983.
(3.) THEREAFTER, a fresh execution application, which was registered as Execution Case No. 19 of 1985, was filed by respondent No. 2 praying for payment of gratuity and other retiral benefits. In the said execution case, petitioners raised the question of jurisdiction in terms of Section 29 of Administrative Tribunals Act, 1985 (supra). Civil Judge, Gorakhpur, did not accept the contention of the petitioner and passed an order on 26.7.1986 holding that Section 29 of the Act did not control the jurisdiction of the High Court. The learned Civil Judge placed reliance upon the first proviso to Section 29 of the Act, which is quoted below : "Provided that nothing in this section shall apply to any appeal pending as aforesaid before the High Court." It is true that the appeal, pending before the High Court, was not to be transferred to the Administrative Tribunal. However, appeal had already been decided by the High Court 11 years before passing of the Act. As held by the Supreme Court in the aforesaid authority, execution application is also to be heard by Administrative Tribunal and not by the civil court. Accordingly, writ petition is allowed. Impugned order is set aside.;