STATE OF J&K Vs. SYED & CO

JUDGEMENT

(1.) IN Civil original suit, Syed and Co Vs. State of Jammu and Kashmir, the court of District Judge, Srinagar passed judgment Dated 18 -7 -1995, decreeing the paintiffs suit for recovery of an amount of Rs. 3,45,762.00 (as excess royalty), Rs, 24,009/ - (sinking fund) and Rs.24,009/ - as security deposit with 12% interest per annum w.e.f., 8 -8 -81 in addition to delivery of 9004 cft of Kail 3292 cft of run. This decree dated 18.7.1996, against the State government and officers of Forest Department was presented for execution, when the decree holders counsel filed an application seeking attachment of the decretal amount from A/C No. 2406 of Forest Department at Saddar Treasury and attachment of the timber. The executing court of District Judge Srinagar on 23.10.1996, itself passed an order of freezing an amount of Rs.24,62,954.00 in A/C No.2406 of forest department at Saddar Treasury Srinagar with direction to the Treasury Officer to deposit the amount in the District Court. Besides, the timber was ordered to be attached from parimpora Depot of the State Government.

(2.) THIS order is impugned in this revision by the state on the grounds that the execution of the decree has been filed before the District Court by Mr. G.H. Nehvi Advocate, as on that date the plaintiff (Syed Mohd Fazili) had died. The District court without any notice to the state, straightway rushed to attach the amount even though the application for setting aside the decree is pending before that court. Even after filing an application for vacation of the impugned order of attachment on the ground that the execution application in absence of succession certificate is not maintainable, no orders thereto have been passed. The department having not been allowed to examine the file to take necessary steps in the matter of prosecution of the application for setting aside the exparte decree, the respondents have every fear that they may not get justice from the district Court, Srinagar and request for transfer of the case.

(3.) HEARD counsel for the parties and perused the record. The decree is against the State of Jammu Kashmir and Chief Conservator of Forests. Section 82 C.P.C. provides that, where a decree is passed against the Government or the public officer in respect of any act purporting to have been done by it or him in his official capacity, such a decree shall not be executed against the government, Unless it remains unsatisfied for the period of three months computed from the date of decree.