Skip to content


The State of Andhra Vs. S. Kameswar Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 66 of 1956
Judge
Reported inAIR1959AP39
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 5
AppellantThe State of Andhra
RespondentS. Kameswar Rao
Appellant AdvocateM. Seshachalapati, Government Pleader and ;Vepa P. Sarathy, Adv.
Respondent AdvocateSankara Sastry and ;T. Veerabhadrayya, Advs.
Disposition Appeal partly allowed
Excerpt:
.....gave directions to pay rs. 15,000 to plaintiff - appeal against order of trial court - there was no claim for recovery of money in suit - high court set aside order as to payment of rs. 15,000 by state to plaintiff. - - ' these were the only directions given by the learned judge, though the order discusses other matters as well. it is perhaps for this reason that the learned judge did not grant any stay or issue any injunction though such refusal is not found clearly stated in the order of the learned judge......pending the appeal from the decree. the appeal filed in this court imperils the finality of the decree appealed from and the whole dispute again becomes sub judice and must be resolved according to the decision rendered by this court on appeal. it is not as if an executable decree had been passed by the lower court which under order 41,_rule 5, c. p. c. could be stayed by this court pending decision of the appeal. it is perhaps for this reason that the learned judge did not grant any stay or issue any injunction though such refusal is not found clearly stated in the order of the learned judge. anyhow the fact is that there is no order of stay or an order of injunction passed by the learned judge and the only orders are those that we have adverted to above. 4. in view of the nature of.....
Judgment:

Viswanatha Sastri, J.

1. This is an appeal against the order of Mr. Justice Bhimasankaram passed in G. M. P. No. 1081 of 1956 in A. S. No. 87 of 1956. The appeal was preferred by the State of Andhra represented by the Chief Secretary of Home Department, Kurnool against the decree of the Subordinate Judge, Guntur in O. S. No. 40 of 1955, The suit was brought by S. Kames-war Rao, the respondent in this L. P. A. for certain declaration against the State of Madras and the State of Andhra regarding the propriety of the order passed for his compulsory retirement from the service of the State in the Police Department. It is unnecessary for the purposes of this appeal to refer to the allegations in the pleadings or to the evidence adduced in the case. Suffice it to say that the learned Subordinate Judge who tried the suit granted a declaration in favour of the plaintiff, here respondent, in these terms :

'In the light of. my findings on the other issues, the following decree is passed :

(1) for a declaration that the order of reversion against the plaintiff reverting him from the rank of an officiating D. S. P. to his original post of Dy. S. P. is void and illegal; and that therefore he should be deemed to hold and continue the said post of officiating D. S. P.

(2) for a declaration that the order of compulsory retirement is void and illegal; and

(3) for costs in the suit against the defendants'. It was against this decree that the State of Andhra preferred A. S. No. 87 of 1956 contesting the legality and propriety of the declaration granted by the learned Subordinate Judge in his judgment.

2. Pending the appeal the State of Andhra applied to this Court in C. M. P. No. 1081 of 1956 foran order directing the suspension of all further proceedings including execution of the decree in O. S.No. 40 of 1955 on the file of the Court of the Subordinate Judge of Guntur pending appeal No. 87 of1956. When this petition came on for hearing beforeone of us, an order of 'interim stay' was passed on14-2-1956. Then C. M. P. No. 1081 of 1956 cameon for final hearing after notice to the respondentbefore Mr. Justice Bhimasankaram who passed theorder which is now the subject of appeal.

3. The directions given by Bhimasankaram J. are these :

'(1) The appeal shall be posted for hearing before the end of September 1956 but not earlier than the 1st day of September 1956.

(2) The State of Andhra should pay the respondent a sum of Rs. 15,000/- within one month from the date of the order.

(3) The costs decreed to the respondent by the Court below should be paid by the Government within 15 days from the date of the order.' These were the only directions given by the learned Judge, though the order discusses other matters as well. Having regard to the fact that the decree granted by the trial Court was one for a bare declaration, there was nothing to be stayed by the appellate Court pending the appeal from the decree. The appeal filed in this Court imperils the finality of the decree appealed from and the whole dispute again becomes sub judice and must be resolved according to the decision rendered by this Court on appeal. It is not as if an executable decree had been passed by the lower Court which under Order 41,_Rule 5, C. P. C. could be stayed by this Court pending decision of the appeal. It is perhaps for this reason that the learned Judge did not grant any stay or issue any injunction though such refusal is not found clearly stated in the order of the learned Judge. Anyhow the fact is that there is no order of stay or an order of injunction passed by the learned Judge and the only orders are those that we have adverted to above.

4. In view of the nature of the suit and the nature of the reliefs claimed by. the plaintiff and having regard to the terms of the decree which has been appealed against to this Court we are of the opinion that there is no justification for the award of a sum of Rs. 15,000/- by the appellant to the respondent. There was no claim for recovery of any sum of money in the suit and the decree does not award any pecuniary relief. It is not as if the right of the respondent to any large sum of salary is admitted in which case it would he open to the appellate Court to direct payment of the whole or a portion of the admitted sum. The effect of the direction given by the learned Judge is that this Court for the first time on appeal is passing an executable order in favour of the respondent for the payment of Rs. 15,000/- in respect of which no claim has been made either in the suit or in the appeal. We are of the opinion that such a direction could not properly be made in this case. So far as the direction for payments of costs is concerned, there is no ground for interfering with the order of the learned Judge.

5. We might observe that it was suggested bythe learned advocate for the respondent that theorder of Bhimasankaram J. was not open to appealunder Clause 15 of the Letters Patent not being a judg-ment' within the meaning of that clause. Having re-gard to the terms of the order of the learned Judge extracted above, which imposes a liability on the appellant and clothes the respondent with a corresponding right to a sum of Rs. 15,000/- we are of theopinion that the order is a judgment against whichan appeal would He. For these reasons, we allow theappeal and set aside the order of Bhimasankaram, J.in so far as it directs payment of Rs. 15,000/- bythe appellant to the respondent. There shall be noorder of stay as to the costs of the suit We are notinterfering with the directions given by Bhimasankaram, J. as regards the preparation of the records ofthe case or its posting. In this L. P. A. each partywill bear his own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //