Lalu Vs. Chhedi - Court Judgment

Excerpt:
act no. xv of 1877 (indian limitation act), schedule ii, articles 178, 179 - execution of decree--limitation--decree for pre-emption--time from which limitation begins to run against the decree-holder. - 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 decree was drawn up in the usual form under section 214 of the code of civil procedure, and one of the provisions of it was that on failure of the plaintiff to pay the purchase money within the time fixed the suit was to stand dismissed with costs, so that the decree was subject to a condition, the performance or non-performance of which made it one which could be enforced at the instance of the plaintiff or the defendant as the case might be.banerji and aikman, jj.1. this appeal arises out of an application for the execution of a decree for pre-emption passed, on the 20th of december, 1897. the decree; provides that the purchase money should be paid within two months from its date, and, that on such payment the plaintiff should obtain possession of the property. the purchase money was paid on the 17th of february, 1898, and the present application for: execution was presented on the 16th of february, 1901. it was thus made after the lapse of three years from the date of the decree, but within three years from the date on which the money was paid. the court of first instance on the objection of the judgment-debtor held the application to be barred by limitation, applying to it article 179 of schedule ii of the indian limitation act. on the decree-holder's appeal the lower appellate court set aside the order of the court of first instance and remanded the case to that court under section 562, code of civil procedure. from this order of remand the present appeal has been preferred by the judgment-debtor, who renews his contention that the application for execution is barred by limitation.2. it is clear that if the first paragraph of article 179 applies, the application is beyond time. but in our opinion, having regard to the nature of the decree which was passed in the case, that article cannot be held to be applicable. it was, held in muhammad sulaiman khan v. muhammad yar khan (1894) i.l.r. 17 all. 39 that the first paragraph of the third column of article 179 must necessarily apply only when there is a decree, or order which can at its date be executed. a decree for pre-emption is not capable of execution on the date on which it is passed, unless on that date the plaintiff pre-emptor pays the purchase money which the decree direct to be paid. in this case there was no decree in existence on the 20th of december, 1897, which was capable of execution on that date. it was only when the decree-holder plaintiff paid the purchase money within the time allowed by the decree that he acquired the right to execute the decree by applying to be put in possession of the property in suit. the decree was drawn up in the usual form under section 214 of the code of civil procedure, and one of the provisions of it was that on failure of the plaintiff to pay the purchase money within the time fixed the suit was to stand dismissed with costs, so that the decree was subject to a condition, the performance or non-performance of which made it one which could be enforced at the instance of the plaintiff or the defendant as the case might be. such being the case, we are of opinion that the article properly applicable to the first application for the execution of such a decree is article 178, and that the three years provided in that article should be calculated from the date on which the right to apply accrued. subsequent applications for the execution of the decree will of course be governed by article 179. we think the learned judge wag right, and we dismiss the appeal with costs.