- (1.) BHANWAR Singh, J. This petition has been filed under Section 12 of the Contempt of Courts Act, 1971 with a prayer to punish the opposite party Sri Virendra Singh for having committed breach of this Court's order dated January 29, 1999 passed in Second Appeal No. 733 of 1983, Co-operative Cane Development Union, Palia Kalan, Lakhimpur Kheri v. Jagmofian Lal Verma.
(2.) IN brief, the facts which are relevant for the present purpose may be narrated as below: The petitioner Jagmohan Lal Verma was in the employment of Cane Co-opera tive Society, Palia Kalan, District Lakhim pur Kheri. His services were terminated by the department in the year 1978. He filed a civil suit but failed to get a favourable decree from the trial Court. However, in appeal he got success and he was demand to have been in the service from the year 1978 by virtue by a decree awarded. The details of the decree are not before this Court but as admitted to the opposite party, the petitioner was treated to be in service continuously entitling him to all the emoluments and allowances admis sible to him as per service rules. The Cane Department filed Second Appeal No. 733 of 1983 in this Court and prayed for, as an interim measure, stay of the operation of the judgment and decree passed in the first appeal. The said second appeal is pending in this Court. By virtue of the order dated 27-3-1984 this Court directed the appel lants to deposit the entire salary payable to the respondent within one month, failing which the stay order granted was to stand automatically vacated. It is alleged by the petitioner that the opposite party did' not deposit the decretal sum in this Court in compliance of the order referred to above. He, therefore, moved an application for dismissal of the second appeal. This ap plication was dismissed on 29-1 -1999 with the observation that in case of default, the stay order granted earlier being condition al automatically stood vacated. The petitioner has now filed the application in hand under Section 12 of the Contempt of Courts Act with the allegations that the opposite party has been continuously disobeying the Court's order referred to above. It is under these circumstances that a prayer for awarding punishment to the opposite party has been pressed into Ser vice. Sri Virendra Singh, Special Secretary, Ganna Sahkari Samiti, Palia Kalan, District Lakhimpur Kheri has con tested this petition on the grounds inter alia that the deponent deposited the amount of salary through tender, a copy of which is Annexure C-3 to the counter-af fidavit on record. It was pleaded further that by virtue of the order dated 29-1-1999, this Court had simply dismissed the petitioner's application seeking dismissal of the second appeal filed by the Cane Department and as such no order was passed by the Court issuing any direction to the appellants and, therefore, no ques tion of any breach or contempt of such order would arise. It has also been con tended that where there is specific provision for execution of a decree, a con tempt petition will not lie. In addition to all the contesting averments as mentioned above, the opposite party has also tendered his unconditional apology. I have heard the learned Counsel for the petitioner as well as the opposite party and perused the record.
(3.) A perusal of the order dated 24-2-1984 passed in the Second Appeal No. 733 of 1983 would reveal that the stay order granted initially by the High Court was modified with the direction to the appel lants to deposit the entire salary payable to the respondent in this Court within one month. It was further directed that in case of default, the stay order would stand automatically vacated. The crucial question which would crop up for determination is as the whether the aforesaid conditional stay order had been complied with or not by the appellants. It is admitted to the opposite party that no deposit of the decretal sum was ever made in the High Court. He has, however, submitted that his Advocate Sri Umakant Srivastava deposited a sum of Rs. 17, 750. 54 (salary due) in the State Bank of India, Government Business Branch, Lucknow. On the face of this ad mitted fact regarding the decretal sum having been deposited in the Bank, it can the link evidence was absolutely lacking. In relation to the sole eye-witness, it was con tended that her own evidence suffers from intrinsic improbabilities and there was crucial deviation from the F. I. R. story by her while deposing in Court. 4. To appreciate the arguments ad vanced on behalf of the appellants, it is necessary to go through the factual back ground of the case. 5. The case Crime No. 145of 1995 was initiated when an F. I. R. was lodged by Km. Siddhi Datri (sister of the two deceased) at Himpur police station on 4-7-1995 at about 6. 15 p. m. for an incident that had taken place at about 4 p. m. in the outskirts of village Sisauna on the same day. The village was about 6 kms. From the police station. In addition to the present six ap pellants, one Bholey son of the appellant Nagendra, was also named in the F. I. R. , but he could not be apprehended during investigation and accordingly, only the present six appellants had stood the trial. According to the F. I. R. , Siddha Prakash and Madan Prakash, two brothers of the complainant, had gone to their fields to fetch fodder. She had also accompanied her brothers to the field. While coming back the brothers were carrying the loads of fodder on their hands and the sister was following them. It was about 4 p. m. then. When they reached near the field of Yogendra, all the present appellants and Bholey waylaid them and announced that they must not be spared as they (the ac cused) had got a chance to avenge the murder of their brother, Kittan. Amongst the appellants, Suman and Yogendra held guns, Nagendra and Sattey has tamanchas with them. The absconder Bholey and the appellant Binnu held Pharsas while Ar-vind had a lamancha with him. They pounced upon Siddha Prakash and Madan Prakash, opened fire on them and also assaulted by Pharsa and killed both of them at the spot. The complainant Siddhi Datri, who was closely following her brothers raised an alarm. The passers-by as well as the neighbouring cultivators also raised alarm and the miscreants fled towards village Pilana through the fields only. The complainant claimed in the F. I. R. that the occurrence was seen by her as also by the passers-by and also by the neighbouring cultivators. The report was scribed by one Anuj Tyagi and was made over to the police station, as already stated, at about 6. 15 p. m. Subsequently, on 19-7-1995 after the arrest of Yogendra and Nagendra in connection with the aforesaid case Crime No. 145 of 1995, certain recovery was made pursuant to their state ment made before the police. The materials recovered were a gun and a tamancha which were allegedly used in the killing of Siddha Prakash and Madan Prakash. For these recoveries, two case crime Nos. 154 of 1995 and 155 of 1995 were recorded against Yogendra and Nagendra respectively, for illicit posses sion and use of fire-arms. 6. Again on 21-7-1995 after that arrest of Suman, Arvind and Vinay, a single bar rel gun, a tamancha and one pharsa were recovered pursuant to statements made by them to the police and it was stated that these weapons were used in the murder of Siddha Prakash and Madan Prakash in the aforesaid, case. For these recoveries, case Crime Nos. 156, 157 and 158, all of 1995, were registered against Suman, Arvind and Vinay, respectively, for illicit posses sion and use of arms.;