Ali Shah Vs. HusaIn Bakhsh and anr. - Court Judgment

Excerpt:
sale in execution of decree - auction purchaser--lis pendens--resjudicata--act viii of 1859(civil procedure code, section 2). - 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]. pearson, j.1. it seems to us very doubtful whether the doctrine of lis pendens applies in this case. the decree passed by the munsif in the suit brought by the heirs of ghulam husain against the heirs of rajbibi and her decree-holder, behary lal, was passed before the present plaintiff had acquired a title to the rights and interests of rajbibi aforesaid as auction-purchaser by the confirmation of the auction-sale. moreover, that doctrine appears to be applicable to cases in which the alienation is of a voluntary nature, and not to an alienee who has bought a property sold in execution of a decree.* doubtless also there is irresistible weight and force in the last ground of appeal. the rights and interests purchased by the plaintiff at auction-sale, which may be assumed to represent an eight-biswas share, fetched a price of rs. 15,000. the one and a half biswa claimed in the present suit is valued at rs. 2,784-6-0. it cannot then be doubted that the value of the three biswas claimed in the suit of ghulam husain's heirs exceeded rs. 1,000, and that the suit was not cognizable by the munsif. it would be unreasonable to hold that the present plaintiff was bound to intervene in that suit, and to dispute the claim preferred in a court which had not jurisdiction to dispose of the matter. we must add that ho cannot be bound by a decree which is patently invalid, and for that reason could not bind even the parties to the suit in which it was passed. the question which was tried and determined in that suit is not a res judicata, because the court which determined it was not a court of competent jurisdiction, and is therefore open to be adjudicated in the present suit. the decree passed in that suit being invalid for want of jurisdiction and nullity, we cannot say that the present plaintiff, as successor in title to rajbibi, was bound to take steps to get it set aside by moans of appeal, or that, because he omitted to do so, it has become binding upon him, and that he is precluded from bringing this suit. accordingly we set aside the decrees passed by the lower courts in this suit, and remand it to the court of first instance under sections 562* and 587+ of act x of 1877 for disposal on the merits, with a direction that the costs of the parties in all the courts shall follow the result.-------------------------------------foot note-----------------------------------* see, however, manual fruval v. sanagapalli 7 mad. h.c. rep. 104, where the doctrine was applied in the case of a sale in execution of a decree pendente lite.*[remand of case by appellate court.section 562: if the court against whose decree the appeal is made has disposed of the suit upon a preliminary point so as to exclude any evidence of fact which appears to the appellate court essential to the determination of the rights of the parties, and the decree upon such preliminary point is reversed in appeal, the appellate court may, if it thinks fit, by order remand the case, together with a copy of the order in appeal, to the court against whose decree the appeal is made, with directions to re-admit the suit under its original number in the register and proceed to investigate the suit on the merits. the appellate court may, if it think fit, direct what issue or issues shall be tried in any case so remanded.]+ [provisions as to second, appeals.section 587: the provisions contained in chapter xli shall apply as far as may be to appeals under this chapter, and to the execution of decrees passed in such appeals.]