MTR. Zubaida Salaria And Others vs State Of J&K

Rahul Bharti, J

Vide trial court judgment and decree dated 24.03.2008, the suit of the plaintiff-Ch. Shabbir Ahmed Salaria, Advocate came to be decreed for recovery of an amount of Rs. 94,712.25/- along with interest @ 4% per annum from the date of institution of the suit till recovery against the then State of Jammu and Kashmir by the court of learned 2nd Additional District Judge, Jammu.

Dissatisfied with the said decree dated 24.03.2008, the plaintiff/decree holder- Ch. Shabbir Ahmed Salaria, Advocate had preferred a civil first appeal-CIA No. 40/2008 before this Court which came to be allowed thereby modifying the trial court decree decreeing the suit of the plaintiff/appellant for an amount of Rs. 1,56,423/- along with interest pendente lite until realization of the decretal amount @ 6% per annum. The appellate decree came into being by virtue of a judgment dated 26.11.2009.

The decree holder-Ch. Shabbir Ahmed Salaria came up with an execution application filed before this Court on 12.07.2010 thereby seeking execution of the decree for an amount of Rs. 3,52,138/-., the compensation of which was in the following manner:

Principal= Rs. 1,93,168/-.

Interest upon the aforesaid amount @ 6% per annum from 19.06.2001 to 30.06.2010=Rs. 1,13,298/- thereby totaling it to be Rs. 3,06,466/- along with cost of Rs. 28,624/- thereby making the total amount recoverable to be Rs. 3,35,090/- upto 30.06.2010 whereupon an interest component of 2% per annum as being enhanced rate of interest on Rs. 94,712/- was also calculated to make the total amount recoverable becoming Rs. 3,52,138/-

In the execution application, the judgment debtor i.e. the then State of Jammu and Kashmir had come forward in making payment duly received by the decree holder- Ch. Shabbir Ahmed Salaria, Advocate whereby the said decree holder came to be paid an amount of Rs. 1,17,633/- by virtue of a bank draft No. 485257 dated 16.06.2008, an amount of Rs. 10,096/-by way of a Cheque No. 005020 on 07.08.2009 and an amount of Rs. 1,47,488/- by way of a cheque No. 103998 dated 22.12.2010 thereby making total payment of amount of Rs. 2,52,962/- uptill 22.12.2010.

This execution application is pending on the docket of this court from 03.08.2010 onwards.

A perusal of the execution application, as against the fact of the payments made by the judgment debtor-the then State of Jammu and Kashmir in favour of the decree holder- Ch. Shabbir Ahmed Salaria, Advocate, would show that the payments had come to take place before the institution of the execution application and still there was no recital in the entire execution application with respect to the payments so received towards satisfaction of the decree in particular the payments received by the decree holder in the year 2008-2009 and, therefore, it means that the execution application was not carrying the correct amount recoverable from the judgment debtor and, therefore, the said execution application could not have been taken to its logical end. Same position stays as on date with a further change in the scenario as the decree holder- Ch. Shabbir Ahmed Salaria, Advocate has expired and is succeeded by the legal representatives who are not on the same page in the matter of succession to his estate.

Therefore, this Court deems that this execution application needs to be closed without prejudice to the rights of the successors-in-interest to come forward with a succession certificate in their favour with respect to the remainder of the decretal amount if reckoned still unpaid from the end of the judgment debtor. Ordered accordingly.

Disposed of accordingly.