Mst. Mehtaba vs State and Others

Muzaffar Hassain Attar, J.—Before dealing with the case on its merits, it may be appropriate to put on record that despite service of notice

through registered post respondents have not appeared to contest this case. This Court had send for the State Counsel/Government Advocate so

as to seek their assistance in this case, but despite best efforts put forth by the Court none of the State Counsel chose to appear in this case. The

Court is left with no option but to decide the case on its merits on the basis of record available and submissions made at Bar by Learned Counsel

for petitioner.

The facts of the case briefly summarized as under:

That the petitioner-plaintiff had instituted a civil original suit on 03.09.2002 which was tried and finally decided by First Additional District Judge

Srinagar. The plaintiff-petitioner had instituted a suit for recovery of Rs. 2.75/- lacs plus interest. The judgment dated 9th Oct. 2004 handed down

by the First Additional District Judge, Srinagar, xeroz copy whereof is placed on record of this revision petition, reveals that plaintiff's son

Mohammad Ayoob Khan was running a shop at Karihama Kupwara and was allegedly picked up by personnel 56th, 76 Btns of Border Security

Forces on 14th Oct. 1990. The case of the petitioner-plaintiff was that she approached all the concerned authorities for seeking release of her

apprehended son. She further pleaded that all these efforts did not bear any fruit and she could not even see her son thereafter. She had

approached different authorities including J&K State Human Rights Commission and even an enquiry was conducted in the matter by Pr. District

Judge Kupwara in pursuance of the orders passed by this Court. The trial court vide judgment dated 9th Oct. 2004 after dealing with the case in

detail held the petitioner entitled to payment of compensation. The trial court record reveals that suit was decided on 9th Oct. 2004 by directing

payment of compensation at Rs. Two lacs. The trial court further directed for payment of interest at therate of 6% p.a. This judgment was passed

in ex-parte and decree sheet was accordingly drawn.

Petitioner filed execution petition, seeking execution of the said decree before the trial court. Respondents appeared before the trial court in

execution proceedings and filed their objections. It appears that objections so filed were rejected by the executing court on 20.05.06, against

which revision petition No. 85/06 was filed before this Court.

This Court after hearing the parties handed down judgment dated 26.02.2007 and dismissed the revision filed by respondents. The respondents

had taken a plea that as the petitioner has been paid Rs. one lac as ex-gratia relief and so only Rs. One lac more is required to be paid and not Rs.

Two lacs, as in their wisdom that would satisfy the decree.

This Court negatived the contention of the state in Civil revision petition No. 85/06 categorically, and in most unambiguous words ruled that Rs.

One lac as ex-gratia relief is granted by the State as a matter of grace whereas, in the suit the petitioner had sought for compensation which suit

was decreed by the trial court, and it was held that the state was duty bound to satisfy the decree. For the purposes of appreciating the

controversy. Para 5 and 6 of the judgment dated 26.02.2007 are reproduced as under:

As regards the contention that payment under decree would have to be subordinate to the rules governing grant of ex-gratia relief to victims

specified therein, it would be appropriate to observe that the decree under execution does not award the amount thereunder to decree holder as

ex-gratia relief but as damages/compensation which the trial court was within it's rights to grant to the tune felt appropriate in given circumstances

of the case. That being so, the rules governing ex-gratia relief are not at all attracted because the texture of claim and relief awarded overflow the

contours thereof and are rooted in exercise of pure civil jurisdiction vested in the court to determine the cause brought by judgment debtor for

payment of compensation to her in lieu of the dis-appearance of her youthful son. The plea that quantum of compensation allowed could not

exceed the limit of ex-gratia relief in such cases, therefore, appears to be fallacious. It requires to be clarified that while grant of ex-gratia relief is an

act of grace on part of Government not strictly actionable unless expressly vested in law or policy, while the claim of compensation against a

wrongful act is an acknowledged legal right, capable of being enforced in accordance with due process of law.

Similarly the contention that amount awarded under the decree has to be taken as ex-gratia relief only because human life cannot be

compensated for and accordingly the decree passed by trial court cannot be deemed to be a compensatory decree or decree of payment of

damages to the respondent-decree holder, too appear to be a mere reflection of petitioners mis placed focus. It is no body's case that the decretal

amount was claimed by respondent-decree holder for life of her disappeared son, particularly because there is even nothing to suggest that trial

court while passing the decree ever proceeded on the assumption of his death. The compensation as a matter of fact appears to have been given to

respondent-decree holder 'mother', who's aged and ailing face resembles a dilapidated grave, for the suffering, pain, agony and deprivation that she

must have suffered during the long years of her youthful son's dis-appearance. In that view the argument advanced, can be noticed only to be

turned down.

It may not be out of place to mention here that during pendency of the earlier revision petition, the respondents under court orders had

deposited Rs. one lac in pursuance of order of the court which has been released in favour of petitioner. In terms of the abovesaid judgment

passed in civil revision No. 85/06 this Court directed the executing court to conclude the matter after realizing the remaining amount, if any, under

the decree from judgment debtors in favour of decree holders. It is in pursuance of the said judgment passed by this Court that the matter was

again considered by the executing court, who in terms of the order dated 17th May 2008, which is impugned in this revision petition ruled that Rs.

One lac has been paid to the petitioner as an ex-gratia relief so decree is satisfied, and she will be only entitled to interest which is to be calculated.

The petitioner being aggrieved of the said order, challenged the same in the present revision petition.

Heard Learned Counsel for petitioner and considered the record. The impugned order on the face of it is not only illegal but is rendered without

jurisdiction in view of the judgment of this Court passed in Civil Revision No. 85/06 dated 26.02.07. This Court in para (5) and (6) had

specifically dealt with the objections which has been repeated before the executing court by the respondents that the petitioner is entitled only to

receive balance amount of Rs. one lac as per their wisdom, which has been paid as ex-gratia relief. This Court had explained in the above said

judgment that Rs. One lac as ex-gratia relief will not become part of the decretal amount. The observation of this Court admit of no doubt or

ambiguity and trial court had to execute the decree for seeking payment of further Rs. One lac plus interest. The trial court appears to have either

not properly appreciated the order of this Court, which is so lucid and clear in its terms or seems to have failed to understand the same.

The decree passed by trial court had not been challenged in appeal or other appropriate proceedings available to respondents. It is settled

principles of law that decree can be resisted in execution proceedings mainly on the ground of having been passed without jurisdiction. The

respondents, it appears have not challenged the execution of the decree on the ground of jurisdiction of the court who passed the same, but

appears to have taken strange plea of having paid Rs. One lac as ex-gratia relief which according to them shall be deemed to be part of the decree

of the trial court. The submission of respondents so made before executing court is misconceived and merits outright rejection.

The impugned order itself reveals that objections which was taken before the executing court was turned down by same executing court earlier

on, against which respondents filed revision petition which was also dismissed by this Court. Same plea could have not been allowed to be raised

and entertained by executing court. The executing court after taking notice of this fact, however, held that payment of Rs. one lac as ex-gratia relief

and other one lac having been paid, the decree is satisfied. The executing court in this view of the matter not only upset the earlier order passed by

the executing court, who rejected such plea, appears to have sat in appeal on the orders of this Court passed in earlier revision petition. The

impugned order besides being illegal and improper also suffers from lack of application of mind.

The executing court has not only violated the judgment of this Court but has even tried to re-write the judgment of the trial court which in

execution proceedings is not permissible and is not countenanced in law. The impugned order on this score is rendered without jurisdiction. The

executing court in law is duty bound to execute the decree unless it is shown to have been passed without jurisdiction.

The impugned order is accordingly set aside and the executing court is directed to execute decree on its own merits in accordance with law

and by taking into consideration judgment dt. 26.02.07 passed in civil revision No. 85/06 by this Court. Revision petition is accordingly allowed.