The Chief Engineer And ANR v. Smti. Saroja Lakra And ANR

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE ANANYA BANDYOPADHYAY CO/46/2025 The Chief Engineer and another ... Petitioners

Versus

Smt. Saroja Lakra and another ... Respondents For the petitioners : Mr. Rakesh Kumar For the respondents : Ms. A.S.Zinu Heard on : 06.11.2025 and 07.11.2025 Judgment on : 07.11.2025 ANANYA BANDYOPADHYAY, J.

1.

The petitioner had been the employer of one Mr. Biraj Lakra since deceased who used to work as Ex Welder of Wimberlygunj Division and retired on 30.04.2006 (AN vide PPO No. 713830602312). The said employee expired on 19.08.2016. The petitioner authority being confounded by certain legal issues had been prevented from disbursing the pension in favour of his survivors.

2.

The learned advocate representing the petitioner submitted the service book of the employee recorded the name of his first wife as Smti. Susan as the wife of the deceased

employee aged 47 years as on 14.05.1997 along with the son and daughter of the same viz Meshack, aged 27 years and Nirmala, aged 18 years respectively. It was further submitted that the respondent claimed herself to be second wife of the aforesaid deceased employee and eventually declared to be the same through an order and decree dated 30.12.2020 and had filed an application claiming for family pension on the demise of the aforesaid employee. It had been the predicament of the petitioner authority legally bound by the service rules to disburse the pension in favour of the respondent since the identity and status of the respondent had not been disclosed by the deceased employee in the service book throughout his service period.

Moreover the respondent did not submit the death certificate of the first wife nor the whereabouts of the children of the deceased employee was intimated to the petitioner authority. Since the predomination of the service rules on the exercise of administrative function had been incumbent on the petitioner authority to be followed, in their consideration the order and decree passed by the Civil Court as aforesaid could not be executable since compliance of the Service Rules was indomitable on behalf of the authorities to discharge its administrative function.

Hon'ble Supreme Court in Asma Lateef and another vs Shabbir Ahmad and others (Civil Appeal No. 9695 of 2013) which, inter alia, stated as follows:- "51. We, therefore, hold that a decree that follows a judgment or an order (of the present nature) would be inexecutable in the eyes of law and execution thereof, if sought for, would be open to objection in an application under section 47, CPC."

3.

The learned advocate representing the respondents submitted once the status of the respondent had been conclusively determined by the Civil Court which had not been challenged by the petitioner who during the pendency of the suit for declaration filed by the respondent had appeared at the inception and thereafter deliberately failed to contest the same. Accordingly, the order and decree passed by the Civil Court in Other Suit No. 18 of 2018 had become absolute and legally sacrosanct and should be executed in its entirety. The petitioner authority had been deliberately abdicating to discharge its liability to release the pension in favour of the respondent. Moreover the respondent is not in a position to provide the death certificate of the first wife of the deceased employee nor is she acquainted or has the wherewithal to identify and or locate the presence of the children of the deceased employee. It should have been the duty of the petitioner authority to trace out the whereabouts of the first wife along with children of the

petitioner. However, at the pretext of the service rules binding upon the petitioner authority the legal right of the respondent should not have been curbed to her prejudice. The learned advocate representing the respondent relied upon the judgement of the Hon'ble Supreme Court as stated as follows:-

1. Dhurandhar Prasad Singh vs Jai Prakash University and others reported in 2001 (5) Supreme 278.

"24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against the governing body of the College which was defendant without seeking leave of the Court to continue the suit against the University upon whom the interest of the original defendant devolved and impleading it.

Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that original defendant absented himself from the proceeding of the suit after appearance as it had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law."

2. M/s. Brakewal Automotive Components (India) Pvt. Ltd. 2017 (5) SCC 371.

"20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.

21. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous cither in law or on facts. The following extract from this decision seems apt: "A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the deeree was incorrect in law or on facta.

Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution.

Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record; where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."

4.

Rule 50 Sub Rule 8 (c) of the Central Civil Service (Pension) Rules states as follows:- "(c) Where the deceased Government servant or pensioner is survived by more widows than one, the family pension shall be paid to the widows in equal shares and on the death or ineligibility of a widow, her share of the family pension shall become payable to her child or children who fulfill the eligibility conditions mentioned in sub-rule (9)." 5.

The respondent nowhere denied the status of the first wife of the deceased and also the rights of children as aforesaid.

6.

The service record of the deceased employee had been placed before this Court by the learned advocate representing the petitioner which in one of the Forms delineating "Nominations for Benefits under Union Territory Government Employees Group Insurance Scheme, 1984", "Nomination for death cum retirement gratuity when the officer has a family and wishes to nominate more than one member thereon" and Form 8 relating to Rule 54 (12) pertaining to family details have categorically mentioned the name of Smti. Susan to be the wife of the deceased employee aged 47 years, Kumar Meshack and Kumari Nirmala to be the son and daughter of the deceased employee aged 27 and 18 years respectively. The family details is inclusive of the mother of the deceased employee namely Smt. Routh, aged 70 years.

7.

The aforesaid information was intimated by the deceased employee under his signature on 14.05.1997 incorporated in the service book. The details of the aforesaid nominees were also incorporated to be the nominees with regard to Provident fund also.

8.

The erstwhile employee since deceased had opted for pension scheme relinquishing the contributory provident fund benefit on 21.05.1987.

9.

Admittedly, the petitioner authority cannot exceed its jurisdiction beyond the legal precincts as enunciated in the service rules. The aforesaid rule is binding upon the petitioner authority. Till date none of the nominees mentioned for the service book as aforesaid applied for disbursal of pension in their favour from the petitioner authority. The petitioner authority did not contest the Civil Suit filed by the respondent for determination of her legal status of a second wife of the erstwhile employee. The Civil Court granted a decree declaring her to be legally wedded wife of the deceased employee. Evidently the petitioner authority did not contest the suit as aforesaid, nor did prefer any appeal from the order and decree passed exparte against it.

Despite the declaration of the names of nominees in the service book once the status of the respondent has been conclusively determined by Civil Court not being under challenge thereafter, the same cannot be declined to be accepted by the petitioner authority on the ground of non executability of the decree, as her name did not appear in the service book. The petitioner authority is to consider the status of the respondent and in strict compliance with Rule 50 Sub Rule 8 (c) of the CCS Pension Rules disburse the pensionary benefits in favour of the respondent No.1 considering her to be one of the widows.

10.

The order dated 13.12.2024 is set aside. The petitioner authority is to consider the status of the respondent No.1 to be one of the widows of the deceased and act accordingly. 11.

CO/46/2025 is accordingly disposed of.

12.

Parties to act in terms of the serve copy of this judgement downloaded from the website of this Hon'ble Court. (ANANYA BANDYOPADHYAY, J.)