(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) By this application, the respondent of First Appeal has prayed for passing necessary direction for compliance by the appellant in respect of a part of the decree which has been granted in favour of the respondent.
2. It appears that the Suit filed by the plaintiff was decreed and the learned trial Judge passed the decree in the terms mentioned below:-
"(23).
The suit of the plaintiff is hereby allowed.
1) The defendants Corporation is hereby ordered to pay the plaintiff society the decreetal amount to the tune of Rs. 1,23,11,726/- which is an alternative relief, along with interest at the rate of 12% p.a. from the date of suit till its realization within two months from the date of this order.
2) It is hereby declared that defendants have no right to give work of handling and transport to anybody else without making payment to the plaintiff and without completing or fulfilling their liability by issuing Form No.6 under the Contract Labour (Regulations and Abolition) Act, 1970;
3) The defendants Corporation is hereby restrained permanently from allotting work of handling and transport of their material to any party without fastening the conditions that the work to be got done by the existing workers i.e. the members of the plaintiff's society.
4) The defendants do bear their own costs and pay the costs of the plaintiff.
5) Decree be drawn accordingly"
3. Being dis-satisfied, the defendant Corporation has preferred a First Appeal before this Court and on an application for stay, this Court has only granted stay in respect of the money decree which is indicated at paragraph 1 of the terms of decree. There is however, no stay in respect of other part of the decree.
4. It appears from the record that in the past the present applicant - respondent filed another application before this Court thereby complaining violation of third part of the decree indicated above at the instance of the defendant and this Court on the assurance of the appellant that there will be no violation of the said part of the decree, disposed of the application by awarding a costs of Rs. 10,000/- in favour of the present applicant.
4. By the present application, the respondent has again alleged violation of the decree for permanent injunction as indicated above.
5. After hearing the learned counsel for the parties and after going through aforesaid materials on record, we find that in this appeal this Court has not restrained the present applicant from executing second, third and fourth part of the decree and thus, they are free to execute the said decree in accordance with law, subject to the final decision that may be passed in the appeal. In fact, the respondent has filed a Special Execution Petition No. 5 of 2010 in the Court of Principal Civil Judge, Vadodara and the same is pending.
6. In our opinion, in the absence of any stay granted by this Court in respect of the third part of the decree relating to permanent injunction, the applicant is free to execute the said decree in accordance with law before the executing Court and there is no scope of passing any direction in this appeal filed by the appellant for enforcement of that part of the decree over which this Court in the past has passed no restraint-order in favour of the appellant.
7. We therefore, find no merit in the application and the same is dismissed. We make it clear that we have not otherwise gone into the question whether the third part of the decree which is sought to be executed is otherwise not executable for discharge, execution or satisfaction within the meaning of Section 47 of the Code of Civil Procedure, and if such question is raised, it is for the executing Court to decide such question in accordance with law. With the above observation this application is disposed of.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B.
Pardiwala, J.) */Mohandas Top