Case: Ashutosh Vs. State Of Rajasthan

such person be tried and determined in any manner in which any issue in a suit may be tried and determined.(3) Where the liability of any person has been tried and determined under sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.(4) Save as against any property of the partnership, a decree against a firm shall not release, render liable or otherwise affect any partner therein unless he has been served with a summons to appear and answer.(5) Nothing in this rule shall apply to a decree passed against a Hindu undivided family by virtue of the provisions of rule 10 of Order XXX." 16. The execution under this Rule can only be granted where a decree has been passed against a firm. A decree against the firm must perforce be in the firms name. Under this Rule, execution may be granted against the partnership property. It may also be granted against the partners, in which case the decree-holder may proceed against the separate property of the partners. In the case of Sahu Rajeshwar Rao vs. I.T.O., AIR 1969 SC 667 , this Court ruled that the liability of the partner of the firm is joint and several and it is open to a creditor of the firm to recover the debt of the firm from any one or more of the partners. In a decree against partnership firm, each partner is personally liable except the minor whose liability is limited to his assets in the partnership. In the case of Her Highness Maharani Mandalsa Devi & Ors. Vs. M. Ramnaram Private Ltd. & Ors., AIR 1965 SC 1718 , while considering the scope of Order 21 Rule 50 this Court observed as follows: "A suit by or in the name of a firm is really a suit by or in the name of all its partners. The decree passed in the suit, though in form against the firm, is in effect a decree against all the partners. Beyond doubt, in a normal case where all the partners of a firm are capable of being sued and of being adjudged judgment-debtors, a suit may be filed and a decree may be obtained against a firm under Order 30 of the Code of Civil Procedure, and such a decree may be executed against the property of the partnership and against all the partners by following the procedure of Order 21 Rule 50 of the Code of Civil Procedure." 17. We shall now advert to the submissions made by the learned Additional Advocate General appearing for the respondent-State. The starting point for the litigation is the decree dated 6.6.1970 passed against the State of Rajasthan in respect of the construction work of irrigation department. An appeal was preferred by the State of Rajasthan on 12.2.1980, an application under Section 144 C.P.C. was moved on behalf of the State on 2.4.1981 and Smt. Dhanwanti Devi executed a Will on 7.12.1983 and died in the month of May, 1985. In May, 1987, the District Judge, Sri Ganganagar allowed the application filed by the State of Rajasthan under Section 144 C.P.C. The attachment of the property was made of the house in question on 21.11.1992. Several other proceedings were taken thereafter by both the parties opposing attachment and the execution etc. Ultimately, the District Judge dismissed the application filed under Order 21 Rules 49 and 50 C.P.C. and the Review Application was also dismissed on 5.9.1998. Thereupon the appellant filed S.B. Civil Execution First Appeal No.2 of 1998 and the said appeal was dismissed on 12.11.2003. Now the parties are in this Court. 18. It is not in dispute that the decree amount of Rs.37,593/- was received by the State on 17.10.1992. The dispute between the parties is only with reference to the interest on the principal amount of Rs.37,593/- as on 17.10.1992, which according to the State, was payable by the Firm. A sum of Rs. 61,890/- was arrived at as interest on Rs.37,593/- as on 17.10.1992. Mr. Aruneshwar Gupta submitted that the State has been dragged into Court unnecessarily by filing a vexatious litigation by the appellant and, therefore, the State must be sufficiently compensated by directing the appellant to pay the interest @ 18% p.a. on Rs.37,593/- from 17.10.1992 till date. Though the argument of Mr. Aruneshwar Gupta appears to be attractive on the first blush, yet on a reconsideration and re-appreciation of the same, the said submission has no merits. Both the parties are in the legal battlefield for all these years. The appellant has also succeeded before the trial Court. The trial Court has held that the Will is genuine and, therefore, necessarily the appellant has to defend all further proceedings initiated by the State in various Courts. Mr. Aruneshwar Gupta submitted that the interest amount of Rs.61890/- as on 17.10.1992 plus the subsequent interest shall be ordered to be paid to the State without showing any sympathy to a vexatious litigant. 19. It is true that justice must be done at all costs. At the same time, we should not also forget that the justice should be tempered with mercy. Asking a party to pay interest on Rs.37,593/- at 18% p.a. from 17.10.1992 , in our considered opinion, is on the high side and excessive. This apart, asking both the parties to continue the execution proceedings at this distance of time is also not proper. The State has to wait for some more time to realise the fruits of the decree. We have also calculated the interest payable on Rs.37,593/- from 17.10.1992 @ 18% p.a. Calculating interest at the said rate, the interest amount comes to Rs.6,766/- p.a. (approx). Multiplying Rs.6,766/- X 13 years comes to Rs. 87,958/-. Adding Rs.61,890/- which was arrived at as interest as on 17.10.1992, The total interest payable on Rs.37,593/- from 17.10.1992 as on today @ 18% p.a. comes to Rs.1,49,848/- (Rs.87,958/- + Rs.61,890/-)

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. Both the contentions raised by the learned counsel appearing for the appellant have absolutely no merit. It is not in dispute that the decree was passed against the firm in which Smt. Dhanwanti Devi was also a partner. Under the provisions of the Partnership Act, one partner is the agent of the other. The partner is always liable for partnership debt unless there is implied or express restriction.It is not in dispute that the decree amount of Rs.37,593/- was received by the State on 17.10.1992. The dispute between the parties is only with reference to the interest on the principal amount of Rs.37,593/- as on 17.10.1992, which according to the State, was payable by the Firm. A sum of Rs. 61,890/- was arrived at as interest on Rs.37,593/- as on 17.10.1992.Mr. Aruneshwar Gupta submitted that the State has been dragged into Court unnecessarily by filing a vexatious litigation by the appellant and, therefore, the State must be sufficiently compensated by directing the appellant to pay the interest @ 18% p.a. on Rs.37,593/- from 17.10.1992 tilldate. Though the argument of Mr. Aruneshwar Gupta appears to be attractive on the first blush, yet on a reconsideration and re-appreciation of the same, the said submission has no merits. Both the parties are in the legal battlefield for all these years. The appellant has also succeeded before the trial Court. The trial Court has held that the Will is genuine and, therefore, necessarily the appellant has to defend all further proceedings initiated by the State in various Courts.Mr. Aruneshwar Gupta submitted that the interest amount of Rs.61890/- as on 17.10.1992 plus the subsequent interest shall be ordered to be paid to the State without showing any sympathy to a vexatious litigant.It is true that justice must be done at all costs. At the same time, we should not also forget that the justice should be tempered with mercy. Asking a party to pay interest on Rs.37,593/- at 18% p.a. from 17.10.1992 , in our considered opinion, is on the high side and excessive. This apart, asking both the parties to continue the execution proceedings at this distance of time is also not proper. The State has to wait for some more time to realise the fruits of the decree. We have also calculated the interest payable on Rs.37,593/- from 17.10.1992 @ 18% p.a. Calculating interest at the said rate, the interest amount comes to Rs.6,766/- p.a. (approx). Multiplying Rs.6,766/- X 13 years comes to Rs. 87,958/-. Adding Rs.61,890/- which was arrived at as interest as on 17.10.1992, The total interest payable on Rs.37,593/- from 17.10.1992 as on today @ 18% p.a. comes to Rs.1,49,848/- (Rs.87,958/- + Rs.61,890/-)