Kongisi Srinivasulu and anr. Vs. Kongisi Naganna and ors. - Court Judgment

Excerpt:
property - attachment of property - order 21 rule 58 of code of civil procedure, 1908 - whether lower appellate court erred in not making distinction between properties belonging to debtor that were attachable and liable to be sold and properties held by debtor in terms of act, 1977 to provide relief to debtor - whether lower appellate court erred in going by principle which was applicable to major sons of a debtor that their properties were not attachable was not applicable to properties of minor sons of debtor - appellants were also entitled to 2/5th share in schedule property - appellants failed to prove that they were small farmers - judgment debtor had ancestral property and also had four sons - claim petition allowed filed by other brothers of claim petitioner binds decree holder - order not operated as res judicata - appellants were on same footing as that of major sons whose petition for raising attachment was allowed - held, shares of appellants raised for which attachment order passed forthwith and decree holder brought remaining 1/5 share of judgment for sale in execution of decree. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the lower appellate court, on consideration of the entire material available on record, dismissed the said appeal holding that the appellants herein failed to prove that they are the small farmers entitled to the benefits of act 7 of 1977. hence, the present second appeal.gopala krishna tamada, j.1. this appeal is directed against the judgment and decree passed in a.s. no. 29 of 1990 dated 30-9-1991 on the file of the ii additional district judge, kurnool.a short, but important point that falls for consideration in this appeal is whether the court below erred in not making any distinction between the properties belonging to the debtor that are attachable and liable to be sold and the properties that are to be held by the debtor in terms of act 7 of 1977 to provide relief to the debtor and whether the court below erred in going by a principle which is applicable to major sons of a debtor that their properties were not attachable, is not applicable to the properties of the minor sons of the debtor ?the factual matrix that led to filing of the second appeal in brief is as follows :originally, one raja subbaiah (since died) filed a suit being o.s. no. 147 of 1976 on the file of the district munsif, dhone, against the 1st respondent herein for recovery of certain amount and obtained a decree. two minor sons of the judgment-debtor-1st respondent, who are the appellants herein, filed e.a. no. 83 of 1981 under order xxi, rule 58 of the code of civil procedure (for short 'the code') to raise attachment in respect of their 2/5th share in the petition schedule property. it is stated in the petition that the petition schedule property is the ancestral joint family property of themselves, their two brothers and their father i.e. the 1st respondent herein and they are personally cultivating their land. the said raja subbaiah obtained an order of attachment of the petition schedule property before judgment on 19-7-1976 and the property was brought to sale. it is further stated that the said raja. subbaiah was entitled to proceed only against the share of 1st respondent in the schedule property i.e., 1/5th share, but he has got attached even the share of the appellants herein and their brothers. therefore, the appellants' other brothers filed a claim under order xxi, rule 58 of the code in e.a. no. 350 of 1979. their claim was upheld in an appeal by the ii additional district judge, kurnool on 30-3-1981, who vacated the attachment made in respect of the 2/5th share of the claimants i.e. brothers of the appellants. the case of the appellants is that they are also entitled to 2/5th share in the petition schedule property and they are small farmers within the meaning of act 7 of 1977 and their share cannot be attached against the debt due by their father under the said act. their share is, therefore, neither attachable nor saleable. the appellants, therefore, requested the court to vacate the attachment made in respect of their 2/5th joint share in the schedule property. however, the trial court dismissed the said application. aggrieved by the same, the appellants preferred an appeal being a.s. no. 29 of 1990 before the ii additional district judge, kurnol. the lower appellate court, on consideration of the entire material available on record, dismissed the said appeal holding that the appellants herein failed to prove that they are the small farmers entitled to the benefits of act 7 of 1977. hence, the present second appeal.2. the learned counsel for the appellants strongly contended that it is not in dispute that the original judgment debtor kongisi naganna i.e. 1st respondent herein cannot be termed as a small farmer and the point that fell for consideration before the lower appellate court was not as to whether the appellant are small farmers or not, but the point was whether their shares are liable to be attached or not and instead of answering that question, the lower appellate court proceeded on the wrong assumption that when once the entire share of the family's holding is taken into consideration and the original judgment debtor is held to be not smallfarmer, and therefore the shares of the minor sons of the debtor cannot be raised fromthe attachment. i have also heard the learned counsel for the respondents,3. from a perusal of the judgment of the court below, it is clear that that it gave more emphasis on the aspect of small farmer, which was discussed in paragraphs 7 to 9 of its judgment, which aspect was not at all in dispute.4. now, coming to the point that is involved in this appeal is whether the principle applied by the court below in raising the attachment of the two major sons is equally applicable to the appellants herein or not and in that aspect the court below discussed in para 10 of its judgment as under :'next contention urged is that the claim petition filed by other brothers of present claim petitioners was allowed and the said order binds decree holder and, therefore, the present claim petition is also to be allowed. ex. a1 is the certified copy of the decree in a.s. no. 150 of 1980 on the file of the court the ii additional district judge, kurnol. in my considered opinion, the said order does not operate as res judicata in the present case. in that case, the question that fell for consideration was whether the claim petitioners therein were the small farmers or not in that appeal, there was no occasion to consider and in fact it was not even considered whether the present appellants are small farmers or not? therefore, the said order ex. al does not operate as res judicata in the present case.' 5. admittedly, the judgment debtor is having ancestral property to an extent of ac. 3.00 of land and also has four sons of whom two are majors and the suit filed by one raja subbaiah was decreed against him. in the execution petition filed by the decree holder when the property attached before judgment was brought to sale, the two major sons of the judgment debtor filed e.a. no. 350 of 1979 in e.p. no. 73 of 1979 which was dismissed by the trial court, but in appeal being a.s. n. 150 of 1980 it was allowed holding that their shares cannot be attached and the same was confirmed by this court. in the said circumstances, the approach adopted by the court below, in my considered view, is wholly erroneous. no doubt, it is true that the earlier order may not operate as res judicata to decide the present case. but, the appellants herein stand on the same footing as that of the major sons whose petition for raising attachment was allowed and when that analogy is applied, here it cannot be said that the appellants herein stand on a different footing. accordingly, i hold that the shares of the appellants herein for which there is an order of attachment shall be raised forthwith and the decree holder can bring the remaining 1/5th share of the judgment debtor for sale in execution of the decree.accordingly the second appeal is allowed.no costs.