Sharma,J.
1. This revision petition is directed against the order dated:20.11.99 passed by the Ist.Addl.Munsiff.Srinagar in execution proceedings titled
Gh.Hassan Dar v/s State and ore. on 19.12.91, the learned Ist.Addl. Munsiff Srinagar decreed the suit of the respondent in exparte and issued
mandatory injuction in his favour and against the petitioners herein directing petitioner No.1 herein (Chief Wild Life Warden, J&K
Srinagar/Jammu) to promote the respondent forthwith before Mohmmad Ramzan. Execution petition (No:28/96) was filed for the satisfaction of
the decree.
2. The petitioners herein filed the objections wherein it was pleaded that the seniority of the respondent had not been maintained in this Games
branch (presentyly department of Wild Life Protection) and his service book was also not available, as he had contineously worked in the Forest
Department for 17 years. It was also pleaded that respondent No:l informed petitioner No: 1 that he was appointed as Forester in the Forest
Department and then posted in the Games Branch so he could not be adjusted in the department due to nonavailability of the post. The judgement
and decree was passed exparte because of unavoidable circumstances after the year 1989 when the prosecutor of the case had migrated from the
valley because of disturbed conditions and the suit of the petitioners could not be pursued in the trial court. That when the decree was put to
execution and petitioners got the knowledge, they appeared in the court on 29.08.1996 and sought the time for submitting the detailed facts before
the court. Meanwhile, petitioner No:2 (Chief Wild Life Warden) had addressed a communication to petitioner No. 1 was well as to the Secretary
to Government,Forest Department J&K, vide annexure R4 and R5 to implement the court decree and his conduct is not malafide and the other
communications were also addressed by him which were R/6,R/7,R/8 attached with the objections. It was prayed that execution proceedings may
be stayed and the exparte decree set aside. The objections were considered by the executing court and a detailed order dated:02.09.1998 was
passed with a direction to the petitioners to implement the decree. This order was not challenged in the higher forum and consequently when the
direction was not obeyed the executing court passed the impugned order on 20.11.1999 and attached half of their salary till further orders or till
they submit the compliance report before the court. Aggrieved by this order the petitioners have come in revision to challenge the same on the
following grounds:
3. That the decree is a nulity having been passed without jurisdiction and as such not executable. The decree holder (respondent herein) is not
competent to hold the post of Range Officer because he did not possess the requisite qualification under the rules and could not be promoted in
defiance of the statutory rules. The status of the respondents has not been determined by the trial court which requirement was sinequanon for
invoking the relief available under Section 42 of the Specific Relief act. The pay of the petitioners can not be attached without giving them an
opportunity of being heard as well as such attachment is barred under the provisions of J&K CSR.
4. Heard the arguments.
The learned counsel has reiterated these grounds in his arguments and laid stress that the executing court under Section 47 cpc had the power to
determine all questions arising between the parties to the suit relating to the executions, discharge or satisfaction of the decree and the petitioners
herein had raised the question about the nonexecution because to grant the promotion to the respondent was not within their competence therefore
execution could not be effected. In this view of the matter, the executing court was required not to pass the impugned order. In support of this
contention learned counsel has cited AIR 1984 Orrisa 229.AIR 1971 Patna 121 and AIR 1956 SC 359. The salary of the public servant can not
be attached under Section 60 cpc as the same is his personal property.
5. In rebuttal it has been argued that respondentdecreeholder served for three decades as forester in the Forest Department, in the Games Wing
which is now Wild Life Protection Wing of the same department. He was compelled to file the suit where the petitioners were defendants No.2
and 3. Written statement was filed by them and the trial court after considering the pleadings had framed the issue. From the record of the case, the
trial court held that the junior of the respondent namely, Mohmmad Ramzan was promoted and even after this promotion the case of the
respondent was not considered though he had been making representations. From the documentary as well as oral submissions it was held that
initially he was appointed in the Games wing(now Wild Life Protection Wing) where he continues on his original appointment. Thus the status of the
petitioner was determined and decree of mandatory injuction was passed for the grant of promotion. It is on the record that petitioners herein got
the knowledge of the passing of the decree in the year 1996. In case the decree was passed in accordance with law, they could approach the
higher forum for setting aside the same or could move the trial court. The executing court on 02.11.1998 had given the opportunity to the
petitioners to get the exparte decree set aside by filing an application but they never had any recourse to this method. In the order
dated:02.09.1998, the executing court after rejecting the objections/statement of facts of the petitioners had directed them to implement the decree
but when they failed to do so, the impugned order was passed after a gap of about one year and 2 months. The petitioners from 02.09.98 till the
date when the impugned order was passed never raised any whisper that they were incapable of executing the decree but they had been making
the statements that they will implement the decree on 03.11.1999. The counsel of the petitioners had made a statement at the bar that he will file
compliance report on the next date of hearing. Even the petitioners herein on 30.10.98 had sought the time to implement the decree. Even their
signatures were obtained by the executing court on the dates of hearing mentioned in the impugned order wherein they had taken time to file the
compliance report. The grounds which have been taken in the revision petition and urged herein were taken in the objections filed before the
executing court and were considered. The salary of a public servant can be attached upto one moiety under Section 60(4Miii) of cpc. In case the
petitioners have objection for the attachment of their salary, the respondent prays that the decree may be got executed by the second mode as
provided under or. 21 R.32 cpc by sending them to civil prison. Concluding his argument Mr.Hussain has stated that a letter from administrative
department bearing No.FSTWL/50/94 dated:16.11.94 has been written to petitioner No.2 to implement the judgment and decree of the court
because the law department has opined so.
6. The arguments advanced by the counsel for the parties have been considered. In AIR 1956 SC 359(Supra) the apex court has held:
When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other
execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the
executing court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree: a thing that an
executing court can not do.
The law cited at the bar by the counsel of the petitioner has no relevance. In AIR 1984 Orrisa 229(Supra) it is held that order passed under or.21
R.32 cpc relates to execution and satisfaction of a decree between the parties to the suit and as such falls within the ambit of Section 47cpc. In
AIR 1971 Patna 121 (Supra) it is held that when an order of the court directing attachment of specified properties is made on failure to remove the
structures, that order is passed in execution of the decree and the provisions of Section 104(l)(h)cpc was not attracted to the case. The law cited
at the bar has no application to the facts of the present case.
7. Considering the facts and circumstances of the case it is found that the trial court has passed the order under the provisions of or. 21 R.32cpc
and the attachment of the salary of the judgement debtors upto one moiety is permitted under Section 60cpc. The trial court has exercised the
jurisdiction vested in it under law and there is no illegality or material irregularity in it. In this view of the matter, there is found no force in the
revision petition which is accordingly dismissed. The record of the trial court be returned. '
