MohsIn Ali Vs. Masum Ali - Court Judgment

Excerpt:
civil procedure code (1908), section 48 - execution of decree--limitation--execution prevented by fraud of judgement-debtor. - 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]. george knox and piggott, jj.1. this is a second appeal in an execution case arising out of a decree passed on the 8th of june, 1891. the question to be decided is whether the application for execu-out of which this appeal arises is or is not barred by the provisions of section 48 of the code of civil procedure. we find that in the year 1906 there was an application for execution by arrest of the judgment-debtor, in connection with which the dispute between the parties was carried up to this court in second appeal. the finding of the additional subordinate judge in his judgment, dated the 6th june, 1907, which was affirmed by this court on appeal, was to the effect that that application was not barred by the provisions of section 48 aforesaid, because the judgment-debtor had by fraud prevented execution of the decree at various times within twelve years immediately before the date of the application then in question. those dates are set forth in the judgment itself, and the last date there given is the 10th of june, 1904, when a warrant for arrest of this judgment-debtor was applied for, and the finding is that the judgment-debtor was guilty of fraud in that he successfully evaded arrest. we are of opinion that upon a correct interpretation of clause 2 of section 48 of the code of civil procedure, the effect of the proviso embodied in that clause is that the bar to execution created by the first clause of the same section is removed for a period of twelve years from any date on which it is held that the judgment-debtor has by fraud prevented the execution of the decree. we have been referred to a ruling to the contrary in the case of sreenath gooho v. yusoof khan (1881) i.l.r. 7 calc 556. but it seems to us that the learned judge who decided that case has not given due effect to the words ' nothing in this section shall be deemed' at the beginning of clause 2, section 48 of the code of civil procedure. we are, accordingly of opinion that this appeal must prevail and that the orders of both the courts below must be set aside and the learned munsif directed to restore the application for execution to his file and endeavour to execute the warrant of arrest applied for by the decree-holder. if as the learned judge seems to think, there is reason to suspect that the decree-holder has applied for this warrant of arrest without serious intent of getting it executed, it should be easy enough for the court to deal with such tactics on his part. the application has been dismissed merely on the ground that it is barred under the provisions of section 48 of the code of civil procedure and in that opinion we are unable to concur. the appellant will get his costs of these proceedings.