Rai Mathura Prasad v. Special Officer, Bihar Hindu Religious Trust Board

PRABHA SHANKER MISHRA, J.

(1.) Judgment-debtor has appealed against the judgment and order of the 6th Additional District Judge, Patna, affirming the judgment and order of the Munsif, Patna City, permitting the Special Officer of the Bihar Hindu Religious Trust Board to be added as a party to the execution proceeding in place of decree-holders to execute the decree on behalf of Sarva Mangala Devi Trust.

(2.) A public trust known-as Sarva Mangala Devi Trust represented through its trustees, filed title Suit No. 274/76 against the appellant and others for a decree of possession after removal of impediments, if any and damages for use and occupation of the suit premises. The suit was decreed on 13-11-1976. The trustees filed execution ease No. 24/77 for execution of the said decree. On 16-3-1981 a petition was filed on behalf of the Special Officer, Bihar Hindu Religious Trust Board for being added as a party to the execution proceeding in place of the decree-holder contending that two of the trustees, namely, Dbanesh Chandra Choudhary and Jagdish Prasad Jaiswal had gone in collusion with the defendant judgment debtor and were acting in a manner prejudicial to the interest of the trust and had been removed accordingly by the Board for their misconduct. Judgment-debtor contested the claim of the Special Officer of the Board on the ground, inter alia, that in the suit the Board was a party defendant and the decree had been obtained by the trustees on behalf of Sarva Mangala Devi Trust; Special Officer of the Beard could not claim any interest of the trust by claiming substitution in place of the trustees; execution could for fied only- at the instance of the decree-holder of a person who has got no- claim of inheritance, assignment or any ether right or interest in the trust.

(3.) Learned Munsif accepted the claim el the Special Officer of the Board and allowed him to execute the decree on behalf of the trust subject to the payment of the cost Clause Rs. 50/-. Judgment-debtor appealed against the said order of the learned Munsif and the 6th Additional District Judge, who finally heard the appeal found that the impugned order was interlocutory in nature and no appeal lay against the same but also. considered the relevant questions on merits and concluded in favour of the Special Officer of the Board. The appeal was accordingly dismissed by him. Judgment debtor has moved this Court thereafter,

(4.) Learned counsel for the parties con tested each others contentions on the question as to whether the addition of a party or transposition of a party defendant in place of the decree-holder, is an appealable order or not. While learned counsel for the appellant has submitted that, the order permitting the Special Officer to execute the decree amounts to modifying the original decree in favour of the trustees, and is thus a decree in itself, learaed counsel for the respondent Beard has contended that the impugned order may be one deciding the case or issue but in no way is an order modifying, a decree which although obtained at the instance of the trustees, is one in favour of the deities and the trust and whe ther it is executed by the trustees or the Spe cial Officer of the Board in lieu of the trustees, it is evidently for and on behalf of the decree-bolder, namely, the trust. He has also submitted that a trust can be represent ed by its next friend arid under the scheme of the law of the State, the Board is the ultimate custodian of the interest of the trust.

(5.) Section 47 of the Civil P. C. requires the Court executing decree to determine all questions arising, between the parties to the suit in which the. decree was passed, or their representatives, and relating ,to the execution, discharge or satisfaction of, the decree. Sub-section (3) of Section 47 says, that where a question arises as to whether any person is or is net the representative of a party such question shall for the purposes of the said section, be determined by the Court Learned counsel for the. appellant has contended that the question decided by the Court below is one as to. whether the Special Officer of the Board is representative of the decree-holders or not for the execution of a decree obtained by the trustees of Satva Mangala Devi Trust. This is a case squarely falling under Section 47 of the Code. A decision on this question by the executing Court is final inasmuch as the objection that the Special Officer of the Board is not the representative of the decree holder as decided by the learned Munsif, has sealed the late of the judgment debtor on this question. He has also pointed out that the omission of Sub-section (2) by the 1976 amendment does not substantially alter the legal position that a decision under Section 47 is a decision in a suit and such a decision finally determining the issue, shall still be appealable.

(6.) In my opinion, the question of maintainability should not detain the disposal of this appeal on merits. True there is some change in law by the Code of Civil Prccedure (Amendment) Act, 1976 and, as Sub-section (2) of Section 47 which vested discretion in the Court to treat an application under Section 47 as a suit or a plaint in a Wit as an application under Section 47 provided that the application was not barred fey limitation on the date of the suit and the Court in which the application or suit was filed, was competent to execute the decree, has been deleted, such contentions are frequently raised as to whether now aft Order passed under Section 47, can be deemed to be one passed in a suit and in lieu of ft decree.

(7.) Before the amendment of 1976, the concluded law was that in order to be appealable as a decree the decision must also fee the formal expression of an adjudication conclusively determining the rights of, the party and a decision which did not have the essential characteristic of a decree was, held te be merely an interlocutory one and was not appealable as a decree. By the amendment Act of 1976 reference to Section 47 has been omitted from the definition of decree under Section 2 (2) of the Civil P. C. and a determination of any question within Section 47 by deleting Sub-section (2) there if has been made as if not a determination of any question in a suit and thus mot amounting to a decree sc as to be appealable. A Division Bench of this Court in the case of M/s. Parshava Properties Ltd. v. A. K. Bose (AIR 1979 Pat 308 [LQ/PatHC/1979/109] ) has considered the question in a relation to inter creation of Section 2 (2) of the Cede as it now stands after the amendment. The Bench noticed that according to law as it stood-before the amendment of 1976, an Order passed under Section 47 was appealable as a decree because the definition of decree included by a deeming fiction "determination of any question within Section 47 of the Code" but now that fiction has been eliminated by the amended definition of decree. The Court posed the question in the following words:--

"The question which remains to be con-sidered is whether all orders passed under Section 47 of the Code are excluded from the definition of the decree, or even now some of the orders come within the express words of the amended definition."

It noticed that the definition before the amendment was in three parts. The first part set out the essential characteristics which, if satisfied, would amount to a decree. The second part introduced a legal fiction. It said, inter alia, that determination of any question within Section 47 of the Code shall be deemed to be a decree The third part stated what shall not be a decree. By the amendment the second- part has been deleted, in so far as "any question under Section 47" is concerned. The effect thereof obviously is that the statutory fiction has disappeared, It cannot now be said that the determination of any question within Section 47 is a decree. The Court thereafter said :-

"Nevertheless, if an order passed by a Court satisfies the essential characteristics of decree as now defined, the mere fact that the order was passed in exercise of powers under" Section 47 of the Code would not ba of consequence."

Proceeding further the Court noticed the language of the definition of a decree and found that in order to satisfy the definition of decree two things have to be established, namely, (I) whether the adjudication in question conclusively, determines the rights of the parlies with regard to all or any of the matters in controversy, and (II) whether the determination is in respect of a controversy in the suit and said (at p. 310):

"There doesnot appear to be seriousdispute that if the order of the Court below determines a controversy in the suit, and that controversy conclusively determines some of the rights of the pasties such an order would fulfil the definition of decree. The decision in this case therefore, hinges on whether the order of the Court below is in relation to matter in controversy in the suit. The expression suit may be interpreted in two ways. It may either mean a civil proceeding which is instituted by presentation of a plaint and culminates in the decree passed by the Court of first instance. This would be a narrow or limited meaning. The crucial expressions may also have a wider meaning. The expressions may embrace within themselves proceedings which are continuation of the suit in the eye of law. It is well settled that an appeal is not a fresh suit. It is only a continuation of the original proceeding and a stage in the suit (See AIR 1957 SC 540 [LQ/SC/1957/10] at page 553 and AIR 1915 Mad 1223 at page 1229 (FB)). It is to be observed that there is no specific provision in the Code requiring preparation of decree in an appeal from original decree. But that a decree has to be prepared is implicit in Section 100, C. P. C, This section envisages second appeal, in enumerated circumstances, from decree passed in appeal. The question of preparation of decree can only arise if the decision in appeal is decree within the meaning of law. It can only be treated to be a decree provided the determination in an appeal is a determination in the suit. We are, therefore, led to the conclusion that the determination in a proceeding which is continuation of a suit is determination in the suit, so as to amount to decree, within the meaning of Section 2 (2) of the Code."

Proceeding further to find out the true nature of the execution proceeding the Court concluded :--

"It would thus appear that both appeal and execution proceedings are continuation of the suit. Just as final determination of a controversy in the appeal is a decree, so must be the decision in the execution proceeding, provided the other necessary ingredients of Section 2 (2) of the Code are fulfilled."

(8.) Parshavas case (AIR 1979 Pat 308 [LQ/PatHC/1979/109] ) (supra) is one in which the legislatures intention in bringing about the amendment, underlying purpose thereof and the rules of interpretation of statutes were closely examined and it was emphasised that even after the amendment the tight of appeal is available against conclusive determination of an issue in a proceeding under Section 47 of the Code, which in term is a proceeding jn the execution of a decree as stated in the following words :--

"Even on the interpretation that I have put, right of appeal is only available against conclusive determination and not in regard to orders which are interlocutory in nature. The intention of the legislature, in my view, appears to me to eliminate appeals only against orders where right of appeal is not essential like orders which are interlocutory in character."

Mr. Ghose is right in contending that the instant adjudication is not interlocutory in character. Undoubtedly the impugned order has got the effect of finally deciding the right of the Special Officer of the Board to execute the decree. With this finality or conclusive determination, in regard to issue involved, learned Munsif has in a way passed a decree; the order passed by him is undoubtedly appealable. The Court of appeal below has erred in law in holding that the appeal before him was not maintainable. As the appeal in the Court below was maintainable, so is the appeal under Section 100 of the Civil P. C. before this Court

(9.) Coming to the merits, however, I am unable to agree to the contention of the learned counsel for the appellant. Trustees (respondents 3 to 6) filed a suit for eviction of the appellant and other defendants through the process of the Court alleging that their possession over Schedules D and C properties was wrongful and that the constructions put by them upon Schedule C properties be dismantled as the same belonged to the trust. Defence in the case was that the trust was a private trust created by one Keshori Lal Choudhury and the trustees have no manner of right to seek ejectment in view of a lease for a period of 10 years executed on 27-10-1956 with an option to renew for a further period of 10 years. Over lacs of rupees were spent on the construction of the Cold Storage and there has been an agreement that the plaintiffs would pay the cost of the construction and of the additions and alterations when the defendants would be asked to vacate the same. Plaintiffs instead of following the terms of the agreement have chosen to file the suit for eviction. In the suit on contest it has been found that the defendants are liable for eviction and that there is no merit in their defence. Appeal preferred by the defendants was also dismissed and the decree holders put the decree in execution by filing Execution Case No. 24/77, The Bihar Hindu Religious Trust Board was a party to the suit and the defendants admitted that the lease in question was granted in their favour with the sanction of the Bihar Hindu Religious Trust Board. It was also held in the suit that the Trust was/is a public Trust. There is no dispute also as to the fact that the trustees have been removed and the Board has assumed supervision and control of the properties of the Trust. Learned counsel for the appellant has contended that the possession of the Board vis-a-vis the trustees cannot be equated with that of legal representative of the Trust or the trustees. It is not a case of assignment, creation or devolution of any interest upon the Special Officer of the Board during the pendency of a suit and as such there is no question of substituting the Special Officer in place of the trustees to execute the decree. According to him the Special Officer of the Board is not a transferee of decree as envisaged under Order 21, Rule 16 of the Civil P. C. The Special Officer could claim the interest of the decree-holder only if the decree in question would have been transferred to him by assignment in writing or by operation of law and not otherwise. He hag placed reliance upon the two Bench decisions of this Court, namely, the case of Amrit Lal Sahu v. Sita Ram Pandit (1970 BUR 1055) and Harsukhrai M. Doshi v. Ahmad Kareem (AIR 1975 Pat 150 [LQ/PatHC/1974/159] ). N. L. Untwalia, J., (as he then was) is a party to both the judgments. In Amrit Lal Sahus case it has been held that the decree can be executed either by the decree-holder who is shown, as decree-holder in the decree, or by his assignee or by his legal representative or any person claiming under him, no other person can execute the decree. A person who claims to be the real owner of the decree and asserts that the person shown as the decree-holder is benamidar has no right to execute such a decree. In H. M. Doshis case it has been hed that even in case of death of decree-holder in course of the execution proceedings the proper provisions under which his legal heirs and representative of the deceased decree-holder can be brought on records of the case, are those of Order 21, Rule 16 and not Order 22, Rule 10. If the provisions of Order 22, Rule 10 of the Code could be brought to apply to the execution proceedings, there would be an inevitable danger of fraud being perpetrated by persons claiming to be either assignees from or legal representatives of the deceased decree-holder and on the basis of assignment by way of an oral gift (the case before the Bench was one governed by Mohamedan Law) any person claiming to be such an assignee of the deceased decree-holder could. in spite of the imperative requirement of Order 21, Rule 16 that the assignment in such cases most be in writing defeat such salutary provisions of law. The Legislature could not have so intended to make the law operative. It was, in the fitness of thing, therefore, that ill the proviso to Order 21, Rule 16 was added a sufficient safeguard and safety valve put upon fraud being perpetrated by any person claiming to be the assignee from the decree-holder. In ease when the decree-holder was alive and a claim was being made on the basis of even a written assignment, the law enjoined upon the person claiming to be such an assignee to proceed with the execution only with due notice of such an assignment and application to the transferred decree-holder. Undoubtedly the above two cases lay down a salutary law, AH the principles are well considered and no aspect of the law is overlooked. I am bound to follow the law laid down in the said two cases

"50. Notice of certain suits to be given to Board and addition of Board as party thereto-- (1) In every suit or proceeding (except in suits instituted by a trustee for the recovery of, arrears of rent and proceedings in execution of decrees passed in such suits) in respect of any religious trust or property belonging to such trust, whether instituted by a trustee or by any other person, the Court shall issue a notice of the institution thereof to the Board. (2) The Board may apply to the Court in which the suit or proceeding referred to in Sub-section (1) is pending to beadded and shall thereupon be added as a party thereto, and shall be entitled to conduct siich suit or proceeding, if instituted by the trustes, or to defend such suit or proceeding, if instituted by any other person against the trustee. (3) If the notice required by Sub-section (1) to be issued to the Board in respect of any suit or, proceeding is not issued, the decree or order passed in such suit or proceeding shall be voidable at the instance of the Board."

It is obvious, therefore, that a special provision has been made about the suits and proceedings relating to the religious trusts or properties belonging to such trusts and the Board has been given a special position to conduct such suits or proceedings, if instituted by the trustees, or to defend such, suit or proceeding, if instituted by any other person against the trustees. Irrespective of the rights of the, trustees to institute or defend a suit in respect of the trust and properties belonging to it, the Board, was/is entitled to conduct or defend the suit or proceeding in respect thereto. This provision in the shape of statutory representation to the Board in a suit or proceeding in respect of a religious; trust and its properties is in consonance with the pronounced object of the to provide for the better administration of Hindu Religious Trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts. Powers and duties of the Board, apart from the general superintendence embrace all things that are reasonable and necessary to ensure that such trusts are properly administered, their income is duly appropriated and applied to the objects of such trusts and in accordance with the purposes for which trusts were founded or for which they exist and include, infer alia, the power to remove a trustee from his office. In "the instant case, the trustees who Originally instituted the suit are no longer available as the Special Officer of the Board has assumed charge of their office. In terms of Section 50 of thethe "Board; could execute the, decree even if the trustees were there to-execute it. The position on their removal is that the Special Officer of the Board alone is competent to continue the proceedings in execution of the decree. Order 21, Rule 16 of the Code of Civil Procedure applies to a case where the interest of any decree-holder in. the decree is transferred and the transferee applies for execution of the decree. As I have already noticed that in the instant case claim of the Special Officer of the Board is not based upon any transfer of the interest of the trustees as the decree-holder, the interest of the trust as the decree-holder has remained unaffect-ed by the removal of the trustees or the substitution of the Special Officer as the person executing decree in place of thetrustees, the Board is competent to conduct" the proceeding in execution of the decree that has been already, passed by a competent Court in respect of religious trust afld property belonging to it. This right is created in the Board by operation of law and the sams shall prevail. Since execution of the instant decree, by the Special Officer of the Board, is by virtue of a statutory provision, it in no way conflicts with the provision of Order 21, Rule 16 of the Civil P. C. Amrit Lal Sahus case (1970 BLJR 1055), as also. Harsukhrais case (AIR 1975 Pat 150 [LQ/PatHC/1974/159] ) (supra) are distinguishable. Law laid dawn ia these cases has got no application on the facts of the instant case. There is no force-in the contention of the learned counsel for the appellant that the Special Officer of the Board is not entitled to execute the decree. As a result of my conclusion id this regard this appeal must fail.

(10.) In the result, I hold that there is no merit in this appeal and the same is accordingly dismissed. On the facts and in the circumstances of this case, there shall however, be no order as to costs.