Case: Ashutosh Vs. State Of Rajasthan

3. Briefly stated, the facts are that a decree for Rs.37,255.07 was passed against the State of Rajasthan on 6.6.1970 in respect of the construction work of irrigation department under Arbitration Act in case No.4 of 1969 entitled Sharma & Co. vs. State of Rajasthan. The said company filed execution and recovered Rs.37,592.57. As against the said amount, two securities were furnished, one by Shri Gurbachan Singh for Rs.2927.57 and another by Smt. Kamla for Rs.37,592.57. Along with the aforesaid surety bonds, House No.79B Block Sri Ganganagar was also furnished against security. The appeal preferred by the State of Rajasthan against the aforesaid judgment and decree was allowed ex parte by the High Court. An application under Section 144 C.P.C. was moved on behalf of the State which was registered as Civil Misc. Case No.2 of 1981. The State of Rajasthan impleaded Sharma & Co., Smt. Kamla Devi and Shri Gurbachan Singh as respondents to the said proceedings. Smt. Dhanwanti Devi, the wife of Shri Shiv Lal Sharma was the exclusive owner of House bearing No. 80B Block Sri Ganganagar. She executed a Will dated 7.12.1983 bequeathing the aforesaid house in favour of her daughters son Ashutosh. Smt. Dhanwanti Devi died in May, 1985. It is stated that the probate proceedings are pending in respect of the aforesaid Will. The District Judge, Sri Ganganagar allowed the application filed by the State of Rajasthan under Section 144 C.P.C. and held that the action can be taken against Smt. Kamla Devi and that the applicant-State was entitled to interest from Sharma & Co. and that the aforesaid application was maintainable under Sections 144 & 145 C.P.C. The Court while allowing the said application held asthe basis of the above discussions, we reach to the conclusion that this application is maintainable under Sections 144, 145 C.P.C. against the non-applicant Nos. 1 and 2 and the applicant is fully entitled to get the action taken. Recovery against non-applicant No.2 be made up to the extent of Rs.35,592.57 as per the security while the action for the recovery for the interest amount of Rs.37,592.57 @ Rs.1.1/2 per hundred per month that would be worked out from the date of filing the application dated 21.4.1981 will be taken against non-applicant No.1.The attachment order in respect of House No.80B Block Sri Ganganagar was passed by the District Judge in Execution Case No. 2 of 1989 on 21.11.1992 on the application of the State. It was reiterated that the aforesaid house exclusively belonged to Smt. Dhanwanti Devi and she had bequeathed the same in favour of the appellant - Ashutosh on 7.12.1983 and that Smt. Dhanwanti Devi was not a party to the suit at any point of time. It was prayed that House No. 80B Block Sri Ganganagar be released in his favour as the same can not be attached in execution. It was further alleged that the appellant-Ashutosh had become the exclusive owner of the house pursuant to the Will executed by Smt. Dhanwanti Devi in his favour and no other person had any title or interest in the same house. The State of Rajasthan filed reply to the application under Order 21 Rule 58 C.P.C. It was asserted that Smt. Dhanwanti Devi was the partner of the aforesaid firm to the extent of 12= paise and she was liable for payment of suit liability. It was also stated that Smt. Dhanwanti Devi had executed the Will in order to escape from her liability to the suit claim. The Additional District and Sessions Judge dismissed the application under Order 21 Rule 58 C.P.C. filed by the appellant herein. It was also held that Smt. Dhanwanti Devi had no right to execute the Will in respect of the disputed house. The Review Application filed by the appellant was also dismissed. Being aggrieved, the appellant filed S.B. Civil Execution First appeal No. 2 of 1998 under Order 21 Rule 58 read with Section 96 C.P.C. The High Court of Rajasthan dismissed the first appeal filed by the appellant. The High Court held that the Will was prepared to defraud the creditor and not with an intention to bonafidely bequeath the property to the appellant, daughters son. Aggrieved by the said judgment and order dated 12.11.2003, the appellant preferred the above appeal.

Reasoning:
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/-)