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2009 Legal Eagle(J&K) 145

IN THE JAMMU & KASHMIR HIGH COURT

Equivalent Citations : 2009 (1) KashLJ 67 : 2009 (2) JKJ 18 : 2009 AIR(J&K) 59 : 2010 (1) SriLJ 97

Before : BARIN GHOSH, C.J.AND MANSOOR AHMAD MIR, J.

Rajinder Kumar Sharma

Versus

Jyoti Sharma

Case No. : LPAOW No. 64 of 2006

Date of Decision : 30-Mar-2009

Advocates Appeared:
Z.A. Shah, Sr. Adv. with Vipan Gandotra, M/s. P.N. Raina, Rahul Bharti and Sindhu Sharma

HEADNOTE :
Legal Services Authorities Act, 1997 Section 18(4) Hindu Marriage Act, 1980 Section 15
Jurisdiction of Lok Adalat Divorce by mutual consent Pending proceedings Disagreement
between parties When there is a disagreement between parties in any case pending before a Court
for which Lok Adalat is organized, Lok Adalat is organized, Loka Adalat shall have jurisdiction.

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(B) Legal Services Authorities Act, 1997 Section 18(4)

Hindu Marriage Act, 1980 Section 15
Reference to Lok Adalat Duty of parties Divorce by mutual consent Challenge to first
motion Party unable to wait for six months for rethinking It is obligatory on part of petitioner
and respondent to approach Lok Adalat to prove that decree obtained by fraud, coercion and
intimidation.

Legal Services Authorities Act, 1997 Section 18(4) Object of jurisdiction of Lok Adalat Object
of vesting jurisdiction in Lok Adalat is to arrive at a compromise or settlement between parties to
dispute in any case pending before any Court for which Lok Adalat in organised.

(D) Legal Services Authority Act, 1997 Meaning of pending case in Court for which Lok Adalat
organised It means any dispute in relation thereto and not necessarily a dispute arising out of
disagreement between parties.

STATUTES REFERRED:
1. Hindu Marriage Act,1980, Section 15
2. Legal Services Authority Act,1997(J&K), Section 18(4)
3. Legal Services Authority Act,1997(J&K), Section 19

CASES REFERRED:
2008 AIR SCW 8033 15
AIR 1969 SC 823

21

JUDGMENT/ORDER:

Judgement

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BARIN GHOSH, C.J. :- In the writ petition, which has been allowed by the judgment and order under
appeal, the petitioner-respondent sought a writ of certiorari quashing the reference made to Lok Adalat
and also the order passed by Lok Adalat. It was contended that the reference to Lok Adalat was
impermissible. The said contention has been accepted. It was also contended that Lok Adalat could not
pass the order on the date the same was passed, as on that date, Lok Adalat had no authority to deal
with the matter. The said contention too has been accepted.

2. The facts giving rise to filing of the writ petition are that the appellant filed a petition seeking
dissolution of his marriage with the petitioner-respondent by decree of divorce on the grounds of
cruelty and desertion, which are available grounds in terms of Section 13 of the Jammu and Kashmir
Hindu Marriage Act, 1980. The petitioner-respondent not only contested the petition but also filed an
application seeking dismissal thereof, since she returned to her matrimonial home and started residing
with the appellant. Upon dismissal of her application, the petitioner-respondent also filed a revision
application. Soon after dismissed thereof, the appellant and the petitioner respondent, on January 21,
2004, filed a petition for dissolution of their marriage by a decree of divorce on mutual consent as may
be had under Section 15 of the Act. In the said petition, amongst others, they stated that they are
Government employees and have not cohabited since April 20, 2002. In the application, it was also
stated that the appellant will pay a sum of Rs. 4.00 lacs in cash or by way demand draft to the petitionerrespondent in lieu of full and final maintenance. It was also stated that the petitioner-respondent shall
have one-third share in the house of which the appellant was the owner. The petition contained the
plan of the house and demarcated one third portion thereof which would come to the share of the
petitioner respondent.

3. On January 21, 2004 itself, the appellant and the petitioner-respondent deposed before Court stating
that they have of their own volition, after understanding the true purport of the petition for divorce on
mutual consent, have filed the same. After such deposition was recorded, both of them and their
counsel requested the Court to put up the case before Lok Adalat. In the circumstances, the Court by an
order dated 21st January, 2004 directed the case to be put up before Lok Adalat on January 27, 2004.

4. On January 27, 2004, the appellant as well as the petitioner-respondent deposed before Lok Adalat
and, while doing so, not only stated that they want divorce on the terms and conditions contained in the
said petition for divorce on mutual consent, but also a decree to that effect be passed by Lok Adalat.
Thereupon, before Lok Adalat, the appellant paid a sum of Rs. 1,00 lac in cash and another sum of Rs.
3.00 lacs by Demand Draft to the petitioner-respondent on January 27, 2004. Thereafter, Lok Adalat on
January 27, 2004 passed the order dissolving ,the marriage of the appellant and the petitionerrespondent after recording that the appellant and the petitioner-respondent were told in Lok Adalat to
reconsider the petition for mutual divorce and were advised to live together but they declined to do so.

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5. Soon thereafter, the writ petition was filed. In the writ petition, it was contended that in relation to
the petition for divorce by mutual consent, there was no dispute requiring compromise of settlement by
Lok Adalat and, accordingly, the same could not be referred to Lok Adalat. It was also stated that the
reference was bad, inasmuch as the Court failed to record its satisfaction before referring the petition
for divorce by mutual consent to Lok Adalat. It was also contended that the petition for mutual consent
could not be decided on the date the same was purported to be decided by Lok Adalat, for, on the date
the same was considered and disposed of, Lok Adalat had no jurisdiction to decide the same. As
aforesaid, the Writ Court accepted such contentions.

6. We have heard at length the counsel appearing on behalf of the parties and have considered the
materials before us.

7. The moot point urged was whether the Court lacked inherent jurisdiction to refer the said petition for
divorce on "mutual consent to Lok Adalat and, if not, whether the same was improper exercise of
jurisdiction? The other point is whether Lok Adalat lacked inherent jurisdiction to pass a decree for
divorce on mutual consent on the date the same was passed and, if not, whether the exercise of such
jurisdiction was improper ?

8. It was urged by the learned counsel for the petitioner-respondent that disputes inter se parties in
connection with a litigation can be referred Lok Adalat, but when a joint petition was filed by both the
parties to the lis, seeking divorce on mutual consent, there was no dispute inter se them and,
accordingly, the petition for divorce by mutual consent could not be referred to Lok Adalat. It was
additionally contended that it was incumbent upon the Court before referring the petition for divorce by
mutual consent to satisfy itself that the dispute is such that the same may be resolved through the
intervention of Lok Adalat, but in the instant case, the same was not done. It was contended that in any
event, before expiry of six months from the date of presentation of a petition for divorce on mutual
consent, neither the Court nor Lok Adalat could deal with the same and, accordingly, Lok Adalat, as on
the date of passing of the decree for divorce on mutual consent, lacked inherent jurisdiction to pass the
decree. Additionally, it was stated that in any event, it was the bounded duty of Lok Adalat to wait for
six months from the date of presentation of the petition for divorce on mutual consent in order to
afford the parties to the petition an opportunity to reconsider their consent for divorce on mutual
consent and that having not been done, the decree for divorce is improper.

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9. The learned counsel for the appellant submitted that it is not the disputes but a lis that can be
referred to Lok Adalat and when both the parties are seeking such reference, it is not necessary for the
Court to satisfy that the lis may be referred to Lok Adalat, which satisfaction becomes necessary when
the request for reference is made by one of the parties to the Us. By referring to various judgments, the,
learned counsel for the appellant submitted that the wait period of six months is not mandatory, the
same is directory. He additionally submitted that since Lok Adalat did not lack inherent jurisdiction, the
decree of divorce granted by Lok Adalat cannot be said to be illegal but may only be said to be an
improper exercise of jurisdiction, and since such jurisdiction was exercised at the request of the
petitioner-respondent also, the petitioner-respondent is estopped from contending that exercise of such
jurisdiction by Lok Adalat was improper.

10. In reply, the learned counsel for the petitioner-respondent contended that parties to a lis, even by
agreement, cannot vest jurisdiction in a Court or an Authority which does not have jurisdiction, which
can only be vested by a statute.

11. In order to appreciate respective contentions and submissions of the parties, it would be necessary
for us to look in the laws governing the field. Before we take a closer look at Section 15 of the Act, it
would be appropriate on our part to take note of certain salient features of said Section. A decree for
divorce by mutual consent, if is to be had under Section 15 of the Act, both the parties to the marriage
together are required to file a petition therefor. They can do so only when they have been living
separately for a period of one year at least before presentation of the petition. They must say in the
petition that they have mutually agreed that the marriage should be dissolved. Once such a petition is
filed, both the parties are required to move the Court to seek divorce by mutual consent, but they can
so more not before expiry of six months from the date of presentation of the petition and not later than
eighteen months from the said date. It provides that the petition may be withdrawn in the meantime,
i.e. within eighteen months after presentation thereof. When the Court is thus moved, it becomes
obligatory for the Court to hear the parties and to make inquiries and to be satisfied that the marriage
had been solemnized and that the averments made in the petition are true. Only then the Court may
pass a decree of divorce which shall be effective from the date of the decree.

12. When, therefore a joint petition for dissolution of marriage by mutual consent is filed, apparently,
there is no dispute inter Se parties to the petition as regards the object thereof. Therefore, if a dispute
between the parties to the lis can only be referred to Lok Adalat, then of course, a petition for divorce
by mutual consent cannot be referred to Lok Adalat. At the same time, it is settled law that if the forum,
even if chosen or agreed to by the parties, lacks inherent jurisdiction, anything done by the said forum is
per se illegal.

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13. We are, therefore, required to look at the appropriate provisions of law. Section 18 of the Jammu
and Kashmir Legal Services Authorities Act, 1997, deals with Lok Adalats. Sub-section (4) thereof
provides as follows :

"(4) Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement
between the parties to a dispute in respect of,-

(i) any case pending before; or

(ii) any matter which is falling within the jurisdiction of and is not brought before, any Court for which
the Lok Adalat is organized :

Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an
offence not compoundable under any law."

14. We have to understand the meaning of the words "parties to a dispute in respect of any case
pending before". Whereas, the learned counsel for the appellant submitted that the words "parties to a
dispute" have been used to confine vesting of jurisdiction to arrive at a compromise or settlement
between them and not to others or strangers; the learned counsel for the petitioner-respondent
submitted that unless there is a dispute, there cannot be parties thereto.

15. A compromise or settlement, no doubt, can be arrived at between warring parties or between
disputing parties. When an application is filed by both parties seeking same relief, it may be correctly
contended that they are neither warring nor disputing parties. However, the object of vesting
jurisdiction in Lok Adalat is to arrive at a compromise or settlement between the parties to a dispute in
any case pending before any Court for which Lok Adalat is organized. A dispute in respect of any case
pending before any Court for which Lok Adalat is organized means any dispute in relation thereto and
not necessary a dispute arising out of the disagreement between parties. There may not be any dispute
in between the parties to a petition for divorce by mutual consent but since vesting of jurisdiction in Lok
Adalat is to arrive at a compromise or settlement in between them, the dispute may be in respect of the
very case pending before the Court for which Lok Adalat is organized, including those pertaining to the
obligation of the Court to resolve the lis. Therefore, it would not be appropriate to hold that unless
there is a dispute between the parties in any case pending before any Court. Lok Adalat shall have no
jurisdiction to arrive at a compromise or settlement between such parties. It is true that ordinarily
6

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dispute means disagreement and, accordingly, parties to a dispute would ordinarily mean parties who
disagree and vesting of jurisdiction in Lok Adalat is to arrive at a compromise or settlement in between
them. Accordingly, ordinarily, when there is a disagreement between the parties in any case pending
before a Court for which Lok Adalat is organized, Lok Adalat shall have jurisdiction, but limiting thus and
no further would be a too narrow construction, for, as we have stated above, the parties to a dispute
would not mean, only the parties who are in dis-agreement, but also those parties who seek redressal
through the intervention of Court, may be they are seeking same relief in agreement with each other. In
Smt. Shilpa v. Abhinav, reported in 2008 AIR SCW 8033, a petition for divorce by mutual consent has
been entertained by Lok Adalat of the Honble Supreme Court, which suggests that Lok Adalat organized
for Honble Supreme Court had authority to do what it did.

16. Learned counsel for the petitioner-respondent submitted that in the judgment referred to above,
the question of jurisdiction of Lok Adalat was not addressed. He submitted that if the interpretation we
have given is accepted, then the words to a dispute, as provided in sub-section (4) of Section 18 of the
Act, would become otiose. He submitted that without reading the said words in the Statute, the same
meaning, as we have given, can be had by reading between the parties in respect of any case pending
before. It is true that in the case referred to above, the question whether the Honble Supreme Court Lok
Adalat has jurisdiction over a petition for grant of divorce by mutual consent was not gone into.
However, the interpretation given by us would not make the words to a dispute, used in sub-section (4)
of Section 18 of the Act, otiose, inasmuch as vesting of jurisdiction in Lok Adalat to arrive at a
compromise or settlement is not only in between the "parties in respect of any case pending before any
Court for which Lok Adalat is organized, but also in relation to a dispute, but such dispute need not be a
dispute in between them, but may be also with regard to the case pending before the Court, settlement
whereof does not depend only on agreement of the parties but also depends upon other facts, including
satisfaction of the Court as a pre-condition for obtaining what the parties desired to obtain by consent
or agreement. In terms of Section 28(1)(c) of the Jammu and Kashmir Hindu Marriage Act, 1980, when a
divorce is sought on the ground of mutual consent, the Court is required to be satisfied that the consent
has not been obtained by force, fraud or undue influence and, therefore, an application for grant of
divorce on the ground of mutual consent inherently raises a dispute as to whether the consent has been
obtained by force, fraud or undue influence.

17. We, therefore, hold that Lok Adalat has jurisdiction in respect of a petition presented for obtaining
divorce by mutual consent and it does not lack inherent jurisdiction in respect thereof.

18. In terms of sub-section (1) of Section 19 of the Jammu and Kashmir Legal Services Authorities Act, if
the parties agree, the Court is bound to refer the case to Lok Adalat. Only when one of the parties
makes an application for referring the case to Lok Adalat, the Court is required to satisfy that there are

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chances of settlement and that the matter is an appropriate one to be taken cognizance of by Lok
Adalat. In the instant case, the parties agreed and, accordingly, the Court had no other option but to
refer the case to Lok Adalat.

19. Sub-section (2) of Section 15 of the Jammu and Kashmir Hindu Marriage Act, 1980 is as follows :-

"2. On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months after the
said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after
hearing the parties and after making such inquiry as it hinks fit, that a marriage has been solemnized and
that the averments in the petition are true, pass decree of divorce declaring the marriage to be
dissolved with effect from the date of the decree."

20. It is, therefore; clear that the Court can be activated to consider a petition for divorce by mutual
consent on the motion of both the parties. The embargo is on the parties. They can move the Court not
earlier than six months after the date of the presentation of the petition. It does not say that before
expiry of six months after the date of the presentation of the petition, the Court shall have no power to
consider the petition. Therefore, if the Court considers the petition on the motion of both the parties
made earlier than six months after the date of presentation of the petition, it would not be appropriate
to hold that the Court lacked inherent jurisdiction to consider the petition when the same was
considered. It is true that the object of the sub-section is to grant the parties to reconsider the consent
given by them within a period of at least six months after the date of presentation of the petition and,
accordingly, it would be appropriate on the part of the Court not to permit the parties to move the
Court for consideration of the petitioner before expiry of at least six months after the date of
presentation of the petition, but if the Court does not do so, it cannot be said because the Court did not
do so, it lacked jurisdiction to consider the petition, for, despite the embargo, the parties moved earlier.

21. It is one thing that the Court had no jurisdiction at all, i.e. it lacked inherent jurisdiction, the other is
that the Court had jurisdiction but it exercised such jurisdiction improperly. The consequence of the first
episode would be total nullity; whereas exercise of improper jurisdiction would result in a wrong order.
In order to understand the outcome of exercise of jurisdiction by the Court which lacked inherent
jurisdiction and the outcome of exercise of jurisdiction by the Court when it did not lack inherent
jurisdiction but decided the same illegally or incorrectly, we have taken note of the judgment of the
Honble Supreme Court rendered in the case of Official Trustee, West Bengal v. Suchindra Nath
Chatterjee, reported in AIR 1969 SC 823, where the Honbe Supreme Court held that what is relevant is
whether the Court had the power to grant the relief asked for in the application made to it and that if

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the Court had competence to pronounce on the issue presented for its decision then the fact that it
decided that issue illegally or incorrectly, is wholly besides the point. Since we have held that neither the
Court lacked inherent jurisdiction to refer the case to Lok Adalat, nor Lok Adalat lacked inherent
jurisdiction to pass the decree for divorce by mutual consent as on the date it passed the same, it cannot
be said that the reference to Lok Adalat and the decree for divorce passed by Lok Adalat are nullity.

22. It is true that a writ of certiorari can be sought to correct an illegal order passed by an inferior
authority. We are ad idem with the learned counsel for the petitioner-respondent that Lok Adalat
should not have permitted the parties to move it to have the petition for divorce considered by them
before expiry of six months from the date of presentation thereof, but not having done so at the
instance of the petitioner-respondent too, it would be inappropriate on our part to permit the
petitioner-respondent to question such inaction on the part of Lok Adalat. It is true that the parties, by
consent, cannot vest jurisdiction to a Court which does not have jurisdiction to entertain the litigation,
but as aforesaid, the bar in Section 15(2) of the Jammu and Kashmir Hindu Marriage Act, 1980, is not on
the Court but is on the parties, and if the parties have breached the bar consciously, they cannot be
permitted to take advantage thereof.

23. It was contended that the public policy of giving an opportunity to rethink, as contained in subsection (2) of Section 15 of the Jammu and Kashmir Hindu Marriage Act, 1980, would be defeated if the
decree passed by Lok Adalat is not interfered with. It is true that sub-section (2) of Section 15 of the Act
contained a public policy whereby and under it grants time of at least six months to the parties to
rethink the consent given by them for dissolution of their marriage, but a person, who did not wait for
the time given for such rethinking, cannot be permitted to turn around and contend that he should be
permitted to rethink after having had concluded the matter at his/her own volition.

24. It was contended that the said decree was obtained by fraud, coercion and intimation. There was no
scope to prove the same in a writ petition. For that, it was obligatory on the part of the petitionerrespondent to approach Lok Adalat.

25. For the reasons as above, we set aside the judgment and order under appeal and dismiss the writ
petition.

Petition dismissed. AIR 2009 JAMMU AND KASHMIR 64 "Union of India v. Sunil Gupta"

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JAMMU & KASHMIR HIGH COURT

Coram : 1 SUNIL HALI, J. ( Single Bench )

Union of India v. Sunil Gupta and Ors.

Rest. (C) No. 352 of 2003, D/- 26 -11 -2008.

J. and K. Civil P.C. (10 of 1977 Smvt.), S.145 - SURETY - LEGAL REPRESENTATIVES - Enforcement of suretys
liability - Award of solution and interest on acquisition compensation was set aside by SC - Restitution
sought from LRs. of deceased claimant - LRs are liable only to the extent of property of deceased
inherent by them - Since respondent had not inherited any such property he is not liable as LR. However facts show that respondent had executed surety bond for 50% of total compensation amount
received by deceased - Hence he being surety is liable to pay back 50% of solatium and inherent.
(Paras 15, 22)

Cases Referred :

Chronological Paras

AIR 2001 SC 450 : 2001 AIR SCW 42 : 2001 CLC 18

AIR 1983 SC 188

21

AIR 1982 SC 1497

21

21

Ajay Sharma, for Petitioner; A.V. Sr. Adv. with Ms. Swati Gupta, for Respondent.

Judgement

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This application has been preferred by the applicant-Union of India seeking recovery of an amount of
Rs. 10,35,805/- with interest at the rate of 18% p.a. from the respondents on account of receiving
solatium and interest in the case entitled as "Union of India v. Dhanwanti Devi (deceased)."

2. In order to appreciate the controversy, the brief facts are necessary to be noticed.

3. Land measuring 58 kanals 14 marlas situated in village Talwal. Tehsil and District Rajouri, belonging to
one Dhanwanti (deceased), came to be acquired by the Union of India. Feeling aggrieved with the
compensation assessed by the Deputy Commissioner, Rajouri, ex-land owner sought arbitration under
Section 8 of the J and K Requisitioning and Acquisition of Immovable Property Act, 1968. The learned
Arbitrator vide his award dated 6-3-1991 assessed the compensation amounting to Rs. 41,09,000/- in
favour of Smt. Dhanwanti Devi (deceased) at the rate of Rs. 70,000/- per kanal. The arbitrator further
allowed solatium at the rate of 15% amounting to Rs. 6,16,350/-with interest at the rate of 4% per
annum on the award amount. Thereafter an appeal was preferred against this order by the Union of
India in this Court.

4. This Court on 7-5-1991 directed the Union of India to deposit an amount of Rs. . 37,94,705/-. The said
appeal came to be dismissed by this Court on 29-2-1992. The award of the arbitrator was maintained.
Thereafter a Special Leave Petition came to be filed by the Union of India before the Supreme Court. The
Apex did not interfere with the amount of compensation but set aside the awarding of solatium and
interest on the amount of compensation awarded in favour of the respondents. It is pertinent to
mention that during the pendency of the SLP, Smt. Dhanwanti died and her legal representatives,
namely, Sunil Gupta, Rohit Gupta and Vishal Gupta were brought on record.

5. In view of the decision of the Supreme Court the amount of solatium and interest awarded by the
arbitrator in favour of the claimants and upheld by the High Court was to be recovered from them. It is
important to mention that this Court vide order dated 30-5-1991 directed for releasing the award
amount in favour of the owner (Dhanwanti Devi deceased) subject to the conditio of her furnishing a
bank guarantee of 50% of the amount and a surety bond and personal security of the balance of 50%.
Respondent No. 1 Sunil Gupta executed a surety bond thereby giving surety to the tune of Rs.
19,09,852.50 which was released in favour of the owner-Dhanwanti Devi and undertook to pay the
amount in case the Court directs. It is also important to mention that late Dhanwanti Devi executed a
General Power of Attorney and a personal bond on 3-6-1991 undertaking to pay 50% of the amount.
Both the documents are part of CIA No. 31/1991.

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6. In the application for restitution, petitioner Union of India states that the excess amount of Rs.
10,35,805 is recoverable from the claimants with interest @ 18% p.a. which comes to Rs. 41,09,000/-.
This amount is sought to be recovered from the respondents on the ground that they are the legal
representatives of late Dhanwanti. This fact has been admitted by them before the Supreme Court,
where they were incorporated as legal representatives of late claimant-Dhanwanti Devi.

7. The respondents in their objections have stated that the present application is not maintainable. It is
stated that the proper remedy available to the petitioner was to file a petition under Order 21, CPC. It is
further stated that they have not inherited the estate of the deceased at all. It is admitted that they
were summoned as legal representatives of late Dhanwanti Devi. However, legal representatives are
different than legal heirs. The respondents have also denied that no interest is payable by them as there
was no direction from the Supreme Court. The respondents have also stated that the application seeking
restitution was barred by time.

8. This Court vide its order date 30-3-2005 has concluded certain issues which were raised by the
respondents. The order of this Court has decided the following questions :-

(a) That the application is within time. The limitation provided seeking recovery of an amount in terms
of the Apex Court"s order is 12 years.

(b) That the present petition for restitution is maintainable. The Court has further stated that the
restitution can be made under inherent power of the Court.

9. With respect to issue as to who is liable to pay this amount, this Court directed the District Judge,
Jammu to enquire into the dispute as to whether the property of deceased Smt. Dhanwanti Devi has
come into the hands of the legal representatives and if so, to what extent, after affording opportunity to
the parties to adduce evidence and rebuttal thereof. After the conclusion of the inquiry, report was to
be sent to this Court. The Court further observed that till the inquiry is made by the District Judge, no
order could be passed for payment of amount on account of solatium and interest on the compensation
received by the claimant.

10. In pursuance to the direction of this Court, learned District and Sessions Judge, Jammu vide its report
dated 10-6-2006 has stated that the legal representatives of the deceased Smt. Dhanwanti Devi have
not inherited any property of the deceased. The burden to prove that some assets of the deceased
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Dhanwanti has passed on to her legal heirs, namely, Sunil Gupta, Rohit Gupta and Vishal Gupta was on
the decree holder but despite numerous opportunities afforded to the decree holder, he has failed to
discharge the burden of proving that any portion of the assets of deceased Dhanwanti has passed in the
hands of her legal representatives.

11. It is important to mention that Union of India has filed writ petition being OWP No. 555/2006
questioning the findings of the District and Sessions Judge dated 6-6-2006. The grounds taken in the
application are :-

(a) That the application filed by the petitioners on 31-5-2006 had been wrongly rejected as the
petitioners had no effective control over the witnesses to be summoned. The witnesses were bank
officials, who were to be summoned along with the record. They could not have been produced by the
petitioners on their own.

(b) That no time was given to the petitioners to summon the witnesses.

(c) That since the amount was public money, the Court was required to show liberal approach in the
matter.

12. It is pertinent to mention that the direction was issued by the learned District Judge on 2-2-2006 for
summoning of the official of the bank subject to depositing of diet expenses of the witnesses. This
direction was not complied with as Union of India had failed to deposit the diet expenses of the
witnesses to be summoned. In essence, the learned District Judge has rejected the application on the
ground that no interest has been shown by the respondents to summon the witnesses despite
opportunities granted.

13. Heard learned counsel for the parties and perused the record.

14. Report of learned District Judge has been received, which clearly states that the respondents being
the legal representatives of Dhanwanti have not inherited her estate. The only question that is required
to be determined is to from whom this amount is to be recovered in the face of the report submitted by
the learned District Judge, Jammu.

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15. It is a settled proposition of law that the legal representatives of the deceased are liable only to the
extent of the property of the deceased which has come into their hands. The extent of liability of the
legal representatives is determined by the fact as to which property has come into their hands. This
aspect of the matter has been inquired by the learned District Judge and he has found that the legal
representatives have not inherited any property of the deceased. So in this view of the matter, this
Court cannot call upon the respondents to reimburse the amount to the petitioners being the legal
representatives of the deceased.

16. The next question that arises for consideration is that what is the liability of the respondents to
reimburse this amount. This Court vide its order dated 30-5-1991 has passed the following order :-

Record has been received. Case shall be listed for further proceedings in the month of July, 1991. Mr. A.
V. Gupta learned counsel for the respondents has made a prayer for release of the amount deposited by
Union of India with Additional/Deputy Registrar. I have heard the learned counsel for the parties in this
regard.

After considering all aspects of the case it is directed that the amount deposited by Union of India shall
be released in favour of the respondent on her furnishing bank guarantee for 50 per cent of the amount
pledged to the Additional Registrar High Court and for remaining 50% amount she will furnish surety
bond and personal bond and personal security to the satisfaction of Additional Registrar.

17. In pursuance to the direction of this Court, the personal bond was executed by late Dhanwanti Devi
through her attorney holder Sunil Gupta that she would pay Rs. 19,09,852.50 or any part thereof as per
the Court direction in such a manner as had been directed. The surety bond was executed by Sunil
Gupta, respondent No. 1 which is quoted as under :-

Whereas in the aforesaid appeal, an amount of Rs. 38,19,705/- stands deposited in this Hon"ble Court;

And whereas vide order dated May 30th, 1991, Hon"ble Court has been pleased to direct the release of
the said amount in favour of the respondent, subject to the condition of respondent furnishing Bank"s
guarantee of 50% of the amount and a surety bond and personal security of the balance of 50%.

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Therefore by this deed of surety, I, Sunil Gupta son of Sh. Jia Lal Gupta resident of Mohalla Dalpatian,
Jammu do hereby bind myself and give surety of Rs. 19,09,852.50 being released in favour of the
respondent, and that I shall pay the said amount, or any part thereof as this Hon"ble Court direct in such
manner as may be directed.

In witness whereof I have signed the aforesaid deed of surety this the 3rd day of June, 1991.

Executant,

Sd/-

(Sunil Gupta).

18. The statement of Sunil Gupta was also recorded on 4th June, 1991, in which he disclosed the
property which he holds on its own, in order to ensure that he is a man of substance to furnish the said
surety.

19. The question that arises now whether this amount can be recovered from respondent No. 1 as
surety. Section 145, CPC deals with enforcement of liability of the surety, which is quoted as under :

Where any person has furnished security or given a guarantee.-

(a) for the performance of any decree or any part thereof, or

(b) for the restitution of any property taken in execution of a decrees, or

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(c) for the payment of any money, or for the fulfillment of any condition imposed on any person, under
an order of the Court in any suit or in any proceeding consequent thereon.

(d) The decree or order may be executed in the manner herein provided for the execution of decrees,
namely :-

(i) If he has rendered himself personally liable, against him to that extent;

(ii) If he has furnished any property as security, by sale of such property to the extent of the security;

(iii) If the case falls both under clauses (i) and (ii) then to the extent specified in those clauses;

And such person shall be deemed to be a party within the meaning of Section 47.

Provided that such notice as the Court in each case thinks sufficient has been given to the surety.

20. The question whether the surety bond executed by respondent No. 1 could be enforced by
exercising the power of the Court. It is order of the Court which creates liability and the Court has the
duty to enforce the same. It was only on the execution of the surety bond by the Executant that the
amount was released in favour of the claimant. This Court has a duty to execute and implement its
orders and it cannot plead helplessness in the matter of execution of its order, in view of the judgment
of the Supreme Court. Respondent No. 1 has personal liability as per the terms of the bonds executed by
him. Under Section 128 of the Contract Act, the liability of the surety is co-extensive with that of
principal debtor unless it is otherwise provided by the Contract. Respondent No. 1 is unequivocally
bound by executing Surety Bond to repay this amount as and when directed by the Court. His liability to
pay is co-extensive with that of the principal debtor i.e. deceased-claimant.

21. Reliance is placed on AIR 1982 SC 1497, AIR 1983 SC 188 and AIR 2001 SC 450 para 14. In AIR 2001 SC
450 titled Western Press Pvt. Ltd., Mumbai v. The Custodian and others, the Supreme Court held as
under :-

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That apart, the provisions contained in S. 145, C.P.C. also would enure to the benefit of the Court as well
as the custodian to proceed against the appellant in enforcement of the undertaking given to the Court
and there are no merits in the contentions sought to be urged to the contrary.

22. In terms of the surety bond executed by respondent No. 1 he has made himself liable to pay Rs.
19,09,852.50 which is 50% of the total amount of Rs. 38,19,705/-. The interest and solatium worked out
by the petitioner on the total amount awarded has come to Rs. 10,35,805/-. In terms of the surety bond
executed by respondent No. 1 he is liable to pay 50% of the said amount. I, accordingly, hold that
respondent No. 1 is liable to pay 50% of the total amount of solatium and interest payable in terms of
Supreme Court order which is half of the amount of Rs. 10,35,805/-.

23. Now coming to the question of interest. Admittedly, respondent No. 1 has not received any amount
but has only acted as surety of the deceased-claimant. It cannot be said that any amount was withheld
by the surety, he is only discharging the liability of the deceased-claimant who had received the amount.
Interest is payable as compensation for withholding of the amount which is due to other person. In the
present case, no amount has been withheld or utilised by the surety so no interest is payable by him.
However, he is liable to pay interest @ 7% p.a. from today on 50% of the total amount till the same is
realised.

24. This petition is, accordingly, disposed of along with connected CMP(s), if any.

Order accordingly.

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