ASHUTOSH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Leave granted.

(2.) The unsuccessful appellant in S.B. Civil Execution First Appeal No.2 of 1998 before the High Court of Rajasthan is the appellant before us by special leave. The appeal is preferred against the judgment and final order dated 12-11-2003 passed by the High Court of Rajasthan in S.B. Civil Execution First Appeal No. 2 of 1998 whereby the appeal preferred by the appellant was dismissed.

(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 and 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 and 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 and Co. and that the aforesaid application was maintainable under Sections 144 and 145, C.P.C. The Court while allowing the said application held as follows :