1 wp2768.24.J.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.2768 OF 2024 1] Sunil s/o Shriram Hatekar, Aged about 57 years, Occupation- Business, R/o “Torna”, Near Paris Bakery, Tapdiya Nagar, Akola, Tah. & District- Akola. 2] Anil s/o Anant Dharulkar, Aged about 60 years, Occupation- Business, R/o A-403, Gokul Arcade, Near Muljibhai Mehta School, Gokul Township, Virar (West) 401303, District- Palghar. ....... PETITIONERS ...V E R S U S... 1] Keshav s/o Krushnaji Joshi, Aged about 87 years, Occupation- Retired, 2] Sachin s/o Keshav Joshi, Aged about 51 years, Occu. Service, Both 1 & 2 R/o. Keshav Nagar, Akola, Tah. And District- Akola. ....... RESPONDENTS ------------------------------------------------------------------------------------------- Mr. S. T. Harkare, Advocate for Petitioners. Mr. A. A. Naik, Senior Advocate with Mr. J. B. Gandhi, Advocate for Respondents. ------------------------------------------------------------------------------------------- CORAM: R. M. JOSHI, J. DATE OF RESERVING THE JUDGMENT : 07.07.2025 DATE OF PRONOUNCING THE JUDGMENT : 14.07.2025 2025:BHC-NAG:6661 2 wp2768.24.J.odt JUDGMENT: 1. Petitioners who are the decree holder being aggrieved by the impugned order passed by the Execution Court i.e. Civil Judge, Senior Division, Akola in Special Darkhast No.34/2022 whereby the objection raised to the maintainability of the execution proceeding on behalf judgment debtor came to be accepted and the execution proceeding was dismissed. 2. By consent of both the sides heard finally at the stage of admission. 3. Certain facts, necessary for the purpose of decision of this case are narrated in brief as under. 4. Petitioners were appointed as Lecturers in the Civil Engineering Department in August 1984. On 28.02.1990 their services were terminated for the reason that the department is closed. Being aggrieved by the said termination an appeal came to be filed under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, ‘MEPS Act’) before School Tribunal, Akola. By judgment and order 3 wp2768.24.J.odt dated 20.11.1992 petitioners were directed to be reinstated in service with full back-wages and continuity of service. Respondents challenged the said order by filing Writ Petition No.316/1993. This petition was dismissed on 16.03.2005. For want of any further challenge, order passed by the School Tribunal granting reinstatement with full back-wages and continuity of service to the petitioners attained finality. 5. Since there was non compliance of the order by the respondent management, petitioner filed Contempt Petition No.43/2006. This petition came to be dismissed on the ground that there is alternate remedy of execution is available to the petitioners. Petitioners therefore, filed execution proceeding before the School Tribunal. An application was filed for transfer of the said proceeding to the Civil Judge, Senior Division, Akola for execution. On 25.02.2012 this application came to be allowed by School Tribunal. Respondent management took exception to the said order by filing Writ Petition No.1124/2012. This petition was dismissed by order dated 16.08.2019, however, liberty was granted to the respondent to raise objection under Section 47 of the Code of Civil Procedure. Pursuant to the dismissal of the petition, School Tribunal once again passed order dated 4 wp2768.24.J.odt 10.08.2022 and physically / actually transferred the execution proceeding to the Civil Judge, Senior Division, Akola, the proceeding came to be numbered before the Civil Judge, Senior Division, Akola as Special Darkhast No.34/2022. In this proceeding an application was moved by the respondent under Order 47 of the CPC for dismissal of the execution proceeding. By impugned order the said objection is accepted and proceeding came to be dismissed. Hence, this petition. 6. Learned Counsel for the petitioners submit that the Execution Court has committed serious error in law by dismissing the petition by going behind the decree which is wholly impermissible in law. To support his submission he placed reliance on the judgments of the Hon’ble Supreme Court in case of [i] Pradeep Mehra v. Harijivan J. Jethwa (since deceased thr. LRs) & Ors. 2023 SCC OnLine 1395, [ii] Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman 1970 LawSuit(SC) 153 and [iii] Brakewel Automotive Components (India) Pvt. Ltd. v. P. R. Selvam Alagappan 2017(6) Mh.L.J. 47. 7. It is his further submission that the execution proceeding are filed well within limitation and in view of the fact 5 wp2768.24.J.odt of pendency of the litigation arising out of the orders passed by the School Tribunal, the proceeding is of year 2022. Therefore, this cannot be construed as filing of the execution proceeding after period of limitation was over. 8. He further argues that objection under Section 47 of the CPC would be restricted to the execution of the order itself and not the merit of the order which is sought to be executed. It is his contention that even if it is accepted that before the Execution Court a decree can be questioned for want of jurisdiction of the trial Court, in the instant case there is no dispute about the fact that the decree has been passed by the Competent Tribunal under MEPS Act. According to him, the Execution Court ought not to have gone into the merits of the order and set aside the same practically which order was confirmed by this Court in Writ petition No.316/1993. 9. Learned Senior Counsel appearing on behalf of respondent management supported the impugned order. He contended that the record indicates about execution proceeding being filed in the year 2022 and since the same is filed beyond period of limitation, it is not maintainable. It is his further 6 wp2768.24.J.odt submission that the original execution proceeding was filed under Section 11(3) of the MEPS Act and since the respondent school is unaided school, it was not open for the Execution Court to pass any such order and that the proceeding filed before Civil Court must be considered as fresh proceeding. 10. On the merits it is his submission that the facts as they appear from the record clearly indicate that the decree is not executable. He drew attention of the Court to the documents on record which according to him, indicate that the subjects sought by the petitioners were discontinued long back and that in year 2017 the institution itself is closed. Thus, it is his submission that the execution proceeding is rightly dismissed by the Execution Court and no interference is required therein. 11. At the outset, this Court would like to deal with the issue of the jurisdiction and powers of the Execution Court in respect of execution of a decree. The Hon’ble Supreme Court in case of Pradeep Mehra (supra) and Vasudev Dhanjihai Modi (supra) has held that Section 47 is limited to the execution of a decree and that the Execution Court cannot go behind decree and that the validity of the order cannot be examined except that the 7 wp2768.24.J.odt order is passed without jurisdiction. Similarly it is held that no objection can be entertained that the decree passed is incorrect in law or on facts. Thus, the law on the point of the powers of the Execution Court is settled to say that the Execution Court cannot go behind the decree. Nor it can decide the correctness or otherwise of the decree except that the decree is passed without jurisdiction. 12. Similarly any objection raised under Section 47 of the CPC which does not pertain to the execution cannot be gone into and decided by the Execution Court. Similarly in order to execute the decree it is expected from the Execution Court to look into the operative part of the decree and not the reasons for passing the judgment and decree. In this regard reference can be made to the judgment in case of Leena w/o Chandrakant @ Balasaheb Chavan v. Chandrakant @ Balasaheb Arjunrao Chavan 2000(2) Mh.L.J. 1 passed by the Division Bench of this Court. Coming to the order impugned. 13. Perusal of the order impugned indicates that the Execution Court has in fact decided the correctness of the judgment and order passed by the School Tribunal. Apart from the 8 wp2768.24.J.odt fact that it was not so open for the Execution Court to go into the correctness or otherwise thereof, the order passed by the Tribunal has merge into the order passed by this Court in Writ Petition No.316/1993 and thus practically Execution Court has ventured to set aside the order passed by this Court too. This is wholly impermissible in law. 14. The Execution Court has gone into the submission of the judgment debtor i.e. respondent management in respect of closure of the department and ultimate closure of the institution on 17.12.2017. In so far as the closure of the department is concerned, since the said fact is prior to the order passed by the Tribunal on 20.11.1992 so also order passed by this Court in Writ Petition No.316/1993 and therefore, the Execution Court ought not to have entertained such plea which was not considered/accepted by Tribunal as well as this Court. The Execution Court, therefore, has exceeded its powers by doing so. 15. With regard to the observation made by the Execution Court about respondent institution having been closed on 17.12.2017 is concerned, even accepting the said fact to be 9 wp2768.24.J.odt true, it would not have become a ground for dismissal of execution proceeding. Pertinently the order passed by the School Tribunal directs reinstatement of the petitioners in service with full back-wages and continuity of service. The petitioners, therefore, if are to be treated as terminated on closure of the institution are certainly entitled for the terminal benefits and amount of back-wages which remained unpaid. Thus, even by acceptance of factum of closure of the institution, the same would not permit the respondent management to shirk the responsibility of the payment of back-wages and other terminal benefits to the petitioners. In any case the closure of the establishment would never become a ground for dismissal of execution proceeding when there is a direction of payment of back-wages to the employee and as such it cannot be said that the order passed by Tribunal is rendered unexecutable. 16. In so far as issue raised by the respondent management with regard to the execution proceeding being filed after the period of limitation is concerned, undeniably the execution proceeding was filed initially before the School Tribunal. Even if the contention of the learned Senior Counsel appearing for the respondent is accepted that no order could have been passed 10 wp2768.24.J.odt by the School Tribunal to the government in view of the fact that the school of respondent is unaided, still the right of the petitioners to execute the said order passed by the School Tribunal is unquestionable. In this regard reference can be made to the observation made by this Court in Writ Petition No.1124/2012 filed by the respondent management which came to be decided on 16.08.2019. The relevant portion of the said judgment can be reproduced as under: 5. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions. The principal ground of challenge as sought to be urged on behalf of the petitioners is that as the Civil Court had no jurisdiction to grant any reliefs as contemplated by Section 9 of the said Act, the Court Court to which such order is sent for execution would have no jurisdiction to entertain the proceedings for execution in the light of the provisions of Section 39(3) of the Code. In other words, since the Civil Court had no jurisdiction to entertain proceedings for seeking reliefs that are contemplated by the provisions of Section 9 (1) of the said Act, the Civil Court would not be in a position after transfer of the proceedings to it to execute such order. The said submission cannot be accepted in the light of the law as laid down by the Full Bench of this Court in St.Ulai High School (supra). The Full Bench has held that with regard to those matters for which an appeal lies to the School Tribunal under the provisions of Section 9(1)(a)(b) of the said Act, the jurisdiction of the Civil Court to entertain such matter is impliedly barred. However at the same time the Full Bench also considered the aspect with regard to 11 wp2768.24.J.odt enforcement of orders passed by the School Tribunal. It has referred to the decision in Mohammad Salam (supra) wherein a learned Single Judge has held that an order passed by the School Tribunal is capable of being executed as a decree of the Civil Court. While considering that aspect further, it was observed by the Full Bench in para 12.1 as under : “12.1 : The learned Single Judge, therefore, held that an Appellate Court is conferred with the same powers and duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. The Tribunal, the learned Single Judge held, is a Court and an order passed by the Tribunal would satisfy the description of that expression in Section 2(14) of the CPC. The learned Single Judge held as follows: Therefore, when the School Tribunal makes an order for reinstatement and for payment of back wages, the Appellant in whose favour such an order is made can definitely approach the School Tribunal, which made the order for execution of that order in the same manner in which the decree under the provisions of the Civil Procedure Code is to be executed. In such situation either the tribunal may itself execute the decree or it may transfer the decree for execution to another Court in accordance with the provisions contained in the Civil Procedure Code. It is thus clear to my mind that an order made by the School Tribunal is an order which is executable under the provisions of the Civil Procedure Code. We affirm the correctness of these observations” 12 wp2768.24.J.odt From the aforesaid observations it is clear that the Full Bench has affirmed the correctness of the observations that the School Tribunal may itself execute an order passed by it or it could transfer the proceedings for execution to another Court in accordance with the provisions of the Code. It has been further observed that when the School Tribunal makes an order for reinstatement and for payment of backwages, the order can be executed in the same manner in which a decree under the provisions of the Code can be executed. In the light of these observations of the Full Bench, it cannot be disputed that though it has been held that the Civil Court has no jurisdiction to grant the reliefs that can be claimed before the School Tribunal under Section 9(1) of the said Act, the order passed by the School Tribunal under those provisions is an order passed by a Court and such order can be executed in the same manner in which a decree under the provisions of the Code can be executed. 6. The learned counsel for the petitioners submitted that the contention now being urged by the petitioners as regards the absence of jurisdiction of the Civil Court to grant reliefs that can be granted only by the School Tribunal under Section 9(1) of the said Act and hence the proceedings for execution of the order passed by the School Tribunal cannot be transferred to the Civil Court have not been dealt with by the Full Bench. Said contention however cannot be accepted in the light of the law laid down by the Full Bench which is binding on this Court. Thus by following the law laid down in St.Ulai High School (supra) it is held that the Civil Court has jurisdiction to execute the orders passed by the School Tribunal. After such proceedings are transferred to it by the School Tribunal, the Civil Court would have the jurisdiction to proceed further for executing such order. The learned Presiding Officer of the School Tribunal has relied upon the aforesaid judgment of the Full Bench 13 wp2768.24.J.odt while passing the impugned order. Moreover, reference to the provisions of Section 42 of the Code clearly indicate the nature of powers of the Court to which a decree has been sent for execution. The finding as regards presence of jurisdiction as recorded by the learned Presiding Officer therefore does not call for any interference. 17. It is a matter of record that after decision of this Court in Writ Petition No.1124/2012, by passing order dated 10.08.2022 School Tribunal has actually transferred the execution proceeding to the Civil Judge, Senior Division, Akola. Obviously the proceedings are to be numbered of that year. It is in this circumstance the same has been numbered as 34/2022. Admittedly, the execution proceeding filed before the School Tribunal came to be transferred. This order of transfer has been upheld by this Court. This order of upholding the transfer of proceeding from School Tribunal to Civil Judge, Senior Division has not been challenged. Hence, now it is not open for the respondent management to take exception thereto. 18. In any case having regard to the fact that after the order was passed by the School Tribunal on 20.11.1992, writ petition was filed by the respondent management. This petition bearing No.316/1993 came to be dismissed on 16.03.2005. 14 wp2768.24.J.odt The application was filed before the School Tribunal for execution well within the period of limitation i.e. on 23.06.2011. The order of transfer of the said proceeding dated 25.01.2012 to Civil Judge, Senior Division, Akola was stayed in Writ Petition No.1124/2012 which ultimately came to be dismissed by order dated 16.08.2019. Thus, there is no substance in the contention that the execution proceeding filed by the petitioners are beyond period of limitation. Even for the sake of arguments it is accepted that the execution proceeding under Section 11(3) of the Act, was not tenable, Section 14 of Evidence Act would come into play. Thus in no circumstance execution proceeding filed by petitioners could have been dismissed on this ground. 19. The above discussion clearly indicates that the Execution Court has committed a serious error in law and on facts while dismissing the execution proceeding, consequently impugned order is set aside. Execution proceeding bearing No.34/2022 stands restored to the Execution Court for its decision in accordance with law. 20. In view of the fact that the dispute between the parties is thus over more than three decades. Hence Execution 15 wp2768.24.J.odt Court is directed to decide execution proceeding expeditiously and in any case within a period of three months. 21. Petition stands allowed in above terms. (R. M. JOSHI, J.) NSN