G.S. Sandhawalia , J.

1. The present application has been filed under Order 21 Rule 11 read with Section 151 CPC by the applicant-appellant for compliance of the order dated 25.07.2018 passed by the Co-ordinate Bench.

2. It is the case of the applicant-appellant that he is entitled to be paid full salary from 12.02.2013 till the date of the second order of removal from service on 24.01.2017 along with other benefits including ACP + entitlement to higher pay-scale within a period of 2 months from the date of passing of the order, at par with the similarly situated employees who had been granted all the benefits. The same is sought in compliance of the order dated 05.12.2018 passed in CWP-14808-2016 (Annexure A-13). It is not disputed that the order dated 25.07.2018 was passed whereby benefits had been granted to the applicant/appellant-writ petitioner, which relief had been denied by the Learned Single Judge.

3. The Learned Single Judge while allowing CWP-24544-2013 on 16.09.2015, quashed the order dated 12.02.2013 whereby the services of the petitioner had been terminated w.e.f. the said date. Similarly, the orders whereby the petitioner had been directed to deposit Rs.23,95,204/- and his appeal against the termination order which had been dismissed on 11.07.2013, were set aside. However, liberty had been granted to the disciplinary authority to proceed in accordance with law from the stage of furnishing of the inquiry report.

4. The matter was carried in appeal by the applicant-appellant on the ground that no financial relief was granted in relation to the period in question and neither any direction had been issued regarding reinstatement of the appellant in service since another order of removal from service had been passed by the respondent-Society. Resultantly, the Co-ordinate Bench noticed that neither the appellant was reinstated in service nor placed under suspension and even the salary was not paid. After submitting the inquiry report, appellant-writ petitioner had been removed from service vide order dated 24.01.2017 during the pendency of the appeal. Accordingly, a finding was recorded that he be paid full salary for the period from the date of termination i.e. 12.02.2013 till the date of the second order of removal from service i.e. 24.01.2017 was passed, pursuant to the orders of the Learned Single Judge and even costs of Rs.50,000/- was made payable. Relevant portion of the judgment reads as under:

“In the light of the above discussion, the appellant will have to be paid full salary from the date of his termination, i.e. 12.02.2013 because the said termination order was quashed by the learned Single Judge, till the second order of his removal from service was passed pursuant to the order made by the learned Single Judge to take fresh action against him by supplying him enquiry report as the appellant was neither reinstated nor paid any allowance. In view of the fact that the legal position was very well known to the respondentManagement and still it did not act according to law and the appellant was without any source of income for the entire period, it would be appropriate to compensate the appellant with costs in the sum of `50,000/- payable to him within a period of 2 months along with salary as aforesaid. In the result, we make the following order:-

ORDER

(i) Letters Patent Appeal No.1682 of 2016 is allowed;

(ii) Respondent No.1-Management shall pay full salary to the appellant for the period from the date of termination on 12.02.2013 till the date his second order of removal from service on 24.01.2017, within 2 months from today;

(iii) Upon failure to pay salary as aforesaid, the same shall carry interest @ 6% per annum. Liberty to take up remedy of appeal against the order of termination/removal dated 24.01.2017;

(iv) Respondent No.1-Management shall also pay costs to the appellant in the sum of `50,000/-, within 2 months from today.”

5. It is the case of the applicant-appellant which has been specifically pleaded in para No.8 of the Execution Application that he was paid only a sum of Rs.15,02,147/- as outstanding salary for the period in question. The respondent-Council did not calculate the salary as per the recommendations of the 7th Pay Commission from 01.01.2016 and if the same is done, the total outstanding salary amounts to Rs.31,05,759/-. It is his case that he had filed a Contempt Petition and liberty was granted on 27.08.2019 (Annexure A-9) to the applicantappellant to avail his remedy in accordance with law in case some grievance survives.

6. The stand of the respondent-Council was that the applicant-appellant had filed CWP-17860-2017 which was disposed of on 11.08.2017 (Annexure A-10) directing the respondents to decide his representation which was for arrears of salary, enhancement of the suspension allowance along with appropriate ACP Scales. The said representation was decided vide speaking order dated 30.10.2017/ 02.11.2017 (Annexure A-11).

7. The said order was challenged by filing CWP-31608-2019, which was dismissed as withdrawn with liberty to avail the alternative remedy vide order dated 09.12.2019 (Annexure A-22) and therefore, the Execution Application was barred by principles of res-judicata. Apart from that, various other objections were taken that FIR No.184 dated 17.06.2011 had been registered against him for embezzlement of Rs.37,60,981/- during the period from 2003 to 2010 and he was placed under suspension vide order dated 23.08.2011. It was submitted that the appellant was terminated from service vide order dated 24.01.2017, during the pendency of the LPA, after giving proper opportunity.

8. It had been admitted that the Division Bench had directed the above-said benefits but the same did not mean that it was in the form of routine salary since the appellant did not attend the office during this tenure and neither the same had been considered as duty period by the answering-respondents. The plea that the Execution Application could only be filed in the writ petition (Original Jurisdiction) and not before the Letters Patent Appeal (Appellate Jurisdiction) was taken by way of filing objections in the shape of reply to the execution application. A plea was taken that the service career of the appellant was tainted and controversial and thus, he was not entitled for senior scale and there were various complaints against him. It was further pleaded that the ground of senior scale or ACP was never subject matter of writ petition in question and the benefits had been sought after the decision of the Co-ordinate Bench which is in the form of illegal claims in the garb of execution proceedings.

9. The defence thus is that the appellant has rightly been paid all the dues as per the directions of the Co-ordinate Bench but there was no direction regarding the payment as per the 7th Pay Commission to the appellant. He had been given the full salary for the period from 12.02.2013 till the date of his second termination order dated 24.01.2017, in lieu of non-payment of suspension allowance. Directions which were sought to be enforced are stated to be for payment of salary as suspension allowance and not as routine salary since the appellant did not attend duties during this tenure and neither the same was to be considered as duty period by the answering-respondents. Therefore, the defence has been taken that the applicant is wrongly interpreting the said period as duty period, which is not sustainable in the eyes of law.

10. Mr.Solath has, thus, tried to justify the non-payment and has taken the stand that the appellant had been paid all the dues and he was not entitled to the enhanced amount as claimed. It is submitted that the claims in the form of COCP and writ petitions having got dismissed thereafter, the appellant could not resort to execution proceedings.

11. The said argument is not liable to be accepted. Firstly, the application is maintainable before this Court in as much as the Learned Single Judge had not granted certain benefits which had been allowed by the Appellate Court on 25.07.2018. The provisions of Section 36 & 37 read with provisions of Order 21 Rule 10 of Civil Procedure Code, 1908 can be referred to. Same read as under:

" Section 36. The provisions of this Code relating to the execution of decrees (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment under an order).

Section 37. The expression 'Court which passed a decree', or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject on context, be deemed to include,--

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) where the Court of first instant has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

Order 21 Rule 10. Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof.”

12. Section 37(a) thus is wide within its ambit that where the decree had been passed in the exercise of the Appellate Jurisdiction then the Court of first instance is deemed to be included to the Court which passed the decree. Rather the power of execution has been widened, not only with the Appellate Court but also the the Court of first instance which is the Writ Court and the said provision cannot be read in the manner that the jurisdiction would only lie with the Writ Court and not the Appellate Court. The provisions of Order 21 Rule 10 CPC provide that if the holder of the decree desires to execute it, he shall apply to the Court which passed the decree or to the officer appointed in this behalf. Reference can also be made to the judgment of the Division Bench in Gulab Chand Sharma Vs. Smt. Saraswati Devi & another 1975 (1) ILR (Delhi) 345. The objection raised therein in execution was that the order which was sought to be executed had been passed by the Division Bench in appellate proceedings. Execution was sought of the same which had been dismissed by the Learned Single Judge. The argument raised was that the application was to be filed in the Trial Court since their was change in the pecuniary jurisdiction and the proceedings in the Appellate Court should be terminated with the passing of the decree. Accordingly, the Division Bench held that the combined reading of Section 37 read with Section 38 CPC would go on to show that the decree could be executed by the Court which had passed it or by the Court to which it has been sent for execution. The Appellate Court, thus, does not lose jurisdiction to execute the execution petition. In fact, a perusal of the above-said judgment would go on to show that reference has been made to the Full Bench judgment of this Court in Mehar Singh & another Vs. Kasturi Ram & others AIR 1962 (Punjab) 394 wherein similar observations had flowed regarding the extension of jurisdiction and not the limitation of the same. Relevant paras of the judgment read as under:

“6. Now Section 38 lays down that a decree is to be executed by the Court that passed it or by the Court to which it has been transferred. There is no provision in the Code, which takes away this jurisdiction of such a Court. Section 37 which purports to explain the term 'the Court which passed the decree" does not exclude the decreeing Court but only empowers certain other Courts to execute them in certain specified circumstances. It is not necessary to discuss this matter at length as all the High Courts have consistently held that the decreeing Court does not lose jurisdiction to execute the decree because of the provisions in Section 37, Civil Procedure Code (vide Latchman Pundeh v. Maddan Mohun Shye, ILR 6 Cal 513, Jahar v. Kamini Debt, ILR 28 Cal 238 [LQ/CalHC/1900/146] , Masrab Khan v. Debnath Mali alias Abhu Mali, AIR 1942 Cal 321, Seeni Nandan v. Muthusamy Pillai, ILR 42 Mad 821: (AIR 1920 Mad 427), and Jagannath Nathu v. Ichharam Naroba, AIR 1925 Bom 414 [LQ/BomHC/1925/47] ). This conclusion has now been approved by the Supreme Court in Merla Ramanna v. Nallaparaju, (S) AIR 1956 SC 87 [LQ/SC/1955/99] .

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10. Now the heading of section 37 states that it defines the expression "Court which passed a decree". It describes a "Court which passed the decree" under three different circumstances. The word "included" in my opinion in the present context has not been used in an extending or limiting sense but indicates the Courts which must be considered as the "Courts which passed the decree", without excluding the decreeing Court. The Legislature takes into consideration three contingencies that may arise when the decree-holder seeks to execute his decree and indicates the Courts which may be treated as the decreeing Courts. It lays down that (1) when a decree is passed by an appellate Courts then the trail Court is to be considered the decreeing Court for purposes of initiating execution proceedings; (2) when the trial Court has ceased to exist then the decreeing Court shall be the Court which would have entertained the suit for the relief granted in the decree; (3) but when the trail Court has ceased to have jurisdiction to execute the decree then the decreeing Court will be the one which could have entertained the suit for the relief granted in the decree. I see no reason why these provisions in Section 37 should be considered to be in substitution of the Courts mentioned in section 38, Civil Procedure Code. I say so with great respect to the eminent Judges who have taken a different view. The provisions of section 37 are intended to given an additional remedy to the decree-holder. It is to be noticed that when an appellate Court passes a decree then it can also transfer the decree of its own motion for execution to the subordinate Court under section 39(2) of the Code. Obviously this can also be done on the application of a decree-holder. Therefore, in such cases it is open to the decree-holder to avail of either of the two remedies. As a matter of practice these applications are filed in the trial Court.”

13. The said view was followed in Pearey Lal & Sons (Pvt.) Ltd. Vs. M/s Jamuna Properties (P) Ltd. & others 2004 AIR (Delhi) 126 wherein objection raised that due to increase in the pecuniary jurisdiction, pending execution applications were liable to be transferred to the District Courts. Same was rejected on the ground that the Court which passed the decree does not lose the jurisdiction to execute the same merely on account of increase in the pecuniary jurisdiction.

14. In the present case, the order which is sought to be enforced is by the Appellate Court dated 25.07.2018 and therefore, the contention that the Writ Court would have jurisdiction is baseless. Reliance can also be placed upon the judgment of the Full Bench in Jagdish Chander Vs. State of Haryana & another 2006 (1) PLJ 776 wherein the issue arose whether the order of the High Court rendered under Articles 226/227 of the Constitution of India is a decree and whether it is executable. Resultantly, it was held that the provisions of the CPC shall not be applicable mutatis-mutandis and the powers of the High Court are enormous and expendous but have to be exercised consciously and cautiously. The implementation cannot be bogged down by technicalities. Relevant portion of the judgment reads as under:

“22. A catena of other judgments have been referred but it would not be of any consequence that all the judgments should be mentioned especially when the matter has been set at rest in view of the judgment of the apex Court and so also the judgment of the Full Bench of Andhra Pradesh High Court with which I am in respectful agreement. It is correct that none of the cases the applicability of Order 21 rule 11 C.P.C was canvassed or was at issue, dehors of this, the principle has been enunciated that the provisions of the Code of Civil Procedure shall not be applicable mutatis mutandis to the proceedings initiated and completed under Articles 226/227 of the Constitution especially, in view of the explanation added to section 141 of the Code. The powers of the High Court under Article 226/227, are enormous and expendous but the same have to be exercised consciously, and cautiously so that none of the parties would suffer in any manner resulting into injustice accordingly. Justice hangs in the scale and the scale is in the hands of the one who presides, however, the balance has to be brought about not only for the satisfaction of the one who presides but for the satisfaction of one and all and that it should be seen, reflected and felt accordingly. The act so committed should never ever be permitted to create any dent in the judicious existence of the society with which it cloths the Court for dispensation of justice. Once the matter has been set at rest or comes to rest, the right so deciphered should reach the person who has asked for it and again in an efficacious manner. Thus, the procedure and the method adopted by the Court for implementation, which has rendered such judgment, should not be allowed to be bogged down by the technicalities. The adoption of procedure has been left to the discretion of the Court as has been observed by the apex Court Such discretion should be exercised in a discreet and crystal clear manner so that the same is not shrouded or impinged upon by any doubt. The question referred to the Bench is answered as under:

The provisions of the Code of Civil Procedure, 1908, shall not apply to the proceedings under Articles 226/227 of the Constitution of India, but for the enforcement of the order so passed under the aforestated extraordinary jurisdiction, shall be enforceable by virtue of the power which is contained in Articles 226/227 of the Constitution of India and that the same should be exercised consciously and cautiously by the Court before whom the enforcement of such right has been sought. In this regard power under Article 227 coupled with Article 226 of the Constitution, may be invoked and that for guidance the principles under the Code of Civil Procedure may be pressed into service without adhering to technical fetters mechanically and in a regimented manner.

All the cases be now put up before the Hon'ble Judges as per the roster.”

15. Even otherwise, a perusal of the order passed by the Contempt Court would go on to show that the Contempt Court noticed that the payments were under 3 heads and even costs have been paid and liberty was granted to avail the remedy in accordance with law in case some grievance still survived. As noticed the grievance is qua the total amount of Rs.31,05,759/-, as per Annexure A-8 and admittedly, a sum of Rs.15,02,147/- has been paid. Similarly, the claim in CWP-17860-2017 was for arrears of salary w.e.f. 01.01.2016 for enhancing the suspension allowance and the writ petition was filed prior to the orders which are now sought to be enforced and directions were sought to pass a speaking order which was passed on 02.11.2017 and the claim of enhancement of suspension allowance to the extent of 75% from 50% was rejected. The same had been challenged by filing CWP-31608-2019 which was also withdrawn on 09.12.2019 with liberty to avail the alternative remedy for the said benefits since admittedly the order of termination dated 24.01.2017 had also been passed dismissing the appellant again from service. It is also pertinent to notice that the application filed by the respondent-Council for reviewing and recalling/modifying the order dated 25.07.2018 which is sought to be enforced was dismissed on 03.10.2018.

16. The stand of the respondents is also not justified as they have sought to distinguish the case of the applicant-appellant from the other serving employees as he has not attended his duties for the said period and neither the same had been considered as duty period. Applicantappellant was estopped by the respondents themselves from attending the duties since on account of the termination order having been passed on 12.02.2013 and the said order had not been found to be justified by the Learned Single Judge. It had been held that the termination order was not sustainable on account of the denial of opportunity to show cause against the findings of the Inquiry Officer and the termination order had been set aside. The ground was that the disciplinary authority had expressed its agreement with the findings of the Inquiry Officer and proposed punishment without first giving an opportunity to the petitioner to show cause against the findings of the Enquiry officer. Liberty was given to proceed in accordance with law from the stage of furnishing the inquiry report. Once the termination order was set aside the appellant was deemed to be in service and therefore, the Co-ordinate Bench rightly allowed his appeal granting the monetory benefits till the fresh order was passed. Rather in the reply filed, the respondent-Council admits that the payments were not being made since there was no direction regarding the claim of payment for the 7th Pay Commission. Once similar benefits were being given to all employees after 01.01.2016, the applicant-appellant could not be put to different terms as he was deemed to be in service for the said period from 01.01.2016 till the date the termination order was passed i.e. 24.01.2017. Therefore, the denial for enhanced pay-scales is not justified, in such circumstances.

17. Accordingly, in the view of the above discussion, the present Execution Application is allowed. The respondent-Council shall pay the balance amount of Rs.16,03,612/- along with interest of 6% per annum from 01.10.2018 as directed vide order dated 25.07.2018. Needful be done within a period of 4 weeks from today. Liberty is also granted to seek further process, as contemplated under Section 51 of the Code of Civil Procedure, 1908, in case the aforesaid payment is not made within the stipulated period.