Lachman Ram and anr. Vs. Mathura Das - Court Judgment

Excerpt:
civil procedure code, section 244 - execution of decree--suit for cancellation on the ground of fraud of a sale held in execution of a decree--proper remedy by application. - 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 allegation of the plaintiffs in the suit is, that the sale was fraudulent, the same having been brought about collusively between the parties after the decree had been satisfied. 166. in this case their lordships clearly stated the grounds upon which the court should act in carrying out the provisions of section 244, and expressed disapproval of some of the earlier decisions.john stanley, c.j. and burkitt, j.1. this is an appeal from an order of the district judge of gorakhpur, remanding a case under section 562 of the code of civil procedure to the officiating subordinate judge of gorakhpur for determination upon the merits. the suit was brought for cancellation of a sale deed executed in favour of the appellant mathura das, upon a sale had in execution of a decree obtained by two persons, baij nath and dilsukh, against the present appellant. the allegation of the plaintiffs in the suit is, that the sale was fraudulent, the same having been brought about collusively between the parties after the decree had been satisfied. the learned officiating subordinate judge, in a carefully-considered judgment, held that the suit was not maintainable, having regard to the provisions of section 244 of the code of civil procedure, and he accordingly dismissed the suit. he also on an application made to him to treat the suit as equivalent to an application under section 244, refused to do so upon the grounds stated at length in his judgment. there was an appeal from this decree to the district judge of gorakhpur, when the learned judge, after reviewing the authorities, was pleased to overrule the decision of the officiating subordinate judge, and to remand the case under the section to which we have referred. the district judge appears to have overlooked the later decisions both of the allahabad high court, and also of the calcutta high court, following upon the judgment of their lordships of the privy council in the case of prosunno coomar sanyal v. kasi das sanyal (1892) l.r. 19 i.a. 166. in this case their lordships clearly stated the grounds upon which the court should act in carrying out the provisions of section 244, and expressed disapproval of some of the earlier decisions. the recent cases in this high court are the case of dhani ram v. chaturbhuj (1899) i.l.r. 22 all. 86 and the case of daulat singh v. jugal kishore (1899) i.l.r. 22 all. 108 and there are the more recent cases in the calcutta high court of bhubon mohun pal v. nunda lal dey (1899) i.l.r. 26 calc. 324 and moti lal chakrbutty v. rusaick chandra bairagi (1896) i.l.r. 26 calc. 326. in these cases effect is given to the principle laid down by their lordships of the privy council, and in the two last mentioned cases it was held that the fact that the purchaser who was no party to the suit was interested in the result of the application, was no bar to the application of section 244, and that an application to set aside a sale on the ground of fraud would come under section 244 of the code of civil procedure, notwithstanding that the purchase was made by a person who was a third party. these authorities abundantly show that the officiating subordinate judge was entirely correct in the view which he took, and that the learned district judge was in error in reversing his decree. we might also observe that in dealing with the authorities of this court which were cited before him, the district judge has entirely misconceived and misinterpreted them.2. upon the other question as to whether the suit might have been regarded as an application under section 244, this was entirely a matter in the discretion of the officiating subordinate judge, who gave it his consideration, and came to the conclusion, in the exercise of his discretion, that the suit ought not to be treated as such an application. we see no reason for interfering with the determination at which he arrived. accordingly we allow this appeal, set aside the decree of the district judge, and dismiss the appeal by the plaintiff to him and we restore the decree of the officiating subordinate judge directing that the suit do stand dismissed with costs.