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2004 DIGILAW 821 (PNJ)

Sharomani Gurdwara Parbandhak Committee v. Ram Sarup

2004-08-04

HEMANT GUPTA

body2004
Judgment Hemant Gupta, J. 1. The present revision is directed against the order passed by the learned Additional District Judge, Amritsar whereby the execution petition filed by the petitioner was dismissed on the ground that it is not filed by a duly authorised person. 2. The Sikh Gurdwara Tribunal Punjab (hereinafter referred to as the Tribunal) passed a decree for possession of a house as detailed in the plaint and a decree for possession of 210 kanals of land in favour of the present petitioner. The execution of the said decree was sought by filing an execution application by the petitioner through its attorney Sardar Bharpur Singh. One of the objection raised was that the application has not been filed by a duly authorised person. On the basis of such objection the following issue No. 3 was framed. 3. Whether the application has been filed by a duly authorised person? Learned District Judge, Amritsar only decided issue No. 3 and held that Sardar Bharpur Singh is not proved to be duly appointed general attorney although Sardar Bharpur Singh general attorney appeared as DHW 2 and produced power of attorney executed by Sardar Gurcharan Singh Tohra, President of the petitioner Ex.DH/1. It was held by the Executing Court that in the said power of attorney Ex.DH/1 there is a reference of resolution which resolution has not been produced and therefore, it cannot be held that the appointment of Sardar Bharpur Singh as general attorney of the decree holder was in accordance with the resolution passed by the general body and thus the execution application is not proved to have been filed by a duly authorised person. 4. Learned counsel for the petitioner has vehemently argued that the finding recorded by the learned Executing Court are wholly illegal and unjustified. It is contended that by virtue of Section 12 Sub-Section (10) of Sikh Gurdwara Act, 1925 the decree of the Tribunal is to be executed by the District Court of the District in which the Gurdwara in connection with which the decree was passed is situated as the decree or order has been a decree or order passed by such court. In pursuance of such provisions, the execution was filed before the District Judge Sangrur. In pursuance of such provisions, the execution was filed before the District Judge Sangrur. The Execution Application is required to be signed in terms of the Order 21 Rule 11 of the Code of Civil Procedure which contemplate that every application for the execution shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. It is, thus, contended that the execution application is not required to be signed or verified by the decree holder himself but it could be verified by some other person acquainted with the facts of the case subject to the satisfaction of the court. It is thus, argued that firstly Sardar Bharpur Singh is proved to be attorney of the petitioner in pursuance of power of attorney Ex. DH/1 as contents of such power of attorney are proved to be correct in terms of Section 85 of the Evidence Act. Reliance was also placed upon a Single Bench judgment of Delhi High Court in Citibank N.A. NEW Delhi vs. Juggilal Kamlapat Jute Mills Co. Ltd., AIR 1982 Delhi 487. 5. Alternatively, it was argued that even if Sardar Bharpur Singh is not proved to be a duly authorised representative of the petitioner, he is a person acquainted with the facts of the present case and thus competent to sign and verify the execution application. 6. On the other hand, Mr. K.S. Grewal, learned counsel for the respondent has vehemently argued that the corporate bodies can speak only through resolutions. In the absence of resolution authorising a particular person to act or to conduct or to defend a case, it shall be deemed to be an act without authority. Reference was made to Sadhu vs. Gram Panchayat of village Akalian, 1990 PLJ 108 and Rajgahria Paper Mills Ltd., vs. General Manager, Indian Security Press and Anr., AIR 2000 Delhi 239. 7. After hearing the learned counsel for the parties and going through the case law cited by them, I find that the findings recorded by the learned Executing Court that Sardar Bharpur Singh is not duly authorised person to represent the petitioner is not sustainable in law. 8. Before proceeding further, it will be advantageous to reproduce the provisions of Order 21 Rule 11 of the Code of Civil Procedure as follows:- 11. Oral application. 8. Before proceeding further, it will be advantageous to reproduce the provisions of Order 21 Rule 11 of the Code of Civil Procedure as follows:- 11. Oral application. (1) Where a decree is for the payment of money the Court may, on the oral application of the decree-holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment debtor; prior to the preparation of a warrant if he is within the precincts of the court. (2) Written application. - Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case and shall contain a tabular form; 8. The power of attorney Ex.DH/1 has been given by Sardar Gurcharan Singh Tohra President of the petitioner. However, it is recited in the said power of attorney that this power of attorney is being given on the basis of right given to him by resolution No. 131 passed by the interim committee on 6.1.197. Learned Executing Court has returned finding against the petitioner as such resolution was not produced. However, it has been held by Delhi High Court relying upon Section 85 of the Evidence Act in Citibanks case (supra) that the purpose of Section 85 of the Evidence Act is to eliminate cumbersome procedure for proving the resolution in case such a power of attorney is executed or authenticated by Notary Public or any authorities mentioned therein. The Court held to the following effect: "20. In the absence of the provisions contained in Section 85 of the Evidence Act, any party to a suit etc. relying on a power of attorney would have to prove it like any other document by producing in a witness box the executant of the document, or the person in whose presence it was so executed, or the person acquainted with the signatures of the executant etc. as the case may be. relying on a power of attorney would have to prove it like any other document by producing in a witness box the executant of the document, or the person in whose presence it was so executed, or the person acquainted with the signatures of the executant etc. as the case may be. If that party is a company corporated in India or in any other country, it would be further required to prove that the person or persons executing the power of attorney on its behalf had been duly authorised by means on its behalf had been duly authorised by means of a resolution duly passed in accordance with law and the articles of association. The purpose of Section 85, in my view, is to eliminate all this cumbersome evidence in case such a power of attorney is executed before and authenticated by a Notary Public or other authorities mentioned therein. If evidence to prove these facts except the facts of execution by the executant, was insisted upon most of the purpose of Section 85 would be frustrated specially in these days of prevalent international trade. 9. Thus, the mere fact that the resolution No. 131 has not been produced on record is not sufficient to lead an inference that the. President of the petitioner was not competent to execute a power of attorney in favour of Sardar Bharpur Singh. The recital in the power of attorney in respect of resolution No. 131 is deemed to be correct. It was open to the respondents that in fact, there is no such resolution. Still further, there is no challenge to the authority of Sardar Gurcharan Singh Tohra as President of the Committee. Therefore, I am unable to maintain the findings recorded by the Executing Court that on account of absence of resolution No. 131, Sardar Bharpur Singh is not proved to be attorney of the petitioner. Such view is wholly illegal and not sustainable in law. 10. Even otherwise, the execution application is required to be signed and verified by the applicant or by some other person acquainted with the facts of the case. He signed and verified the objection on the basis of an authority of the President of the petitioner. He has appeared as a witness and deposed about such authority. His testimony about the lack of authority could not be disputed in any reasonable manner. He signed and verified the objection on the basis of an authority of the President of the petitioner. He has appeared as a witness and deposed about such authority. His testimony about the lack of authority could not be disputed in any reasonable manner. Consequently, I am satisfied that he is the person acquainted with the facts of the case who is competent to sign and verify the execution application in terms of the provisions mentioned above. 11. The judgments referred to by the learned counsel for the respondent are clearly distinguishable. As a matter of fact in Sadhu s case (supra) the challenge was to a decree suffered by the Gram Panchayat through its Sarpanch Rulia Ram. Such decree was sought to be avoided on the ground that Rulia Ram was not authorised to defend the case on behalf of the Panchayat or to accept the claim. It was held that the justice cannot be allowed to be shackled by these sharp practices with the help of technicalities. As a matter of fact, in the present case, the technicalities are being used by the judgment debtor to continue in possession even though the decree was passed long time back. M/s Rajghria Paper Mills case (supra) is clearly distinguishable wherein the question was of authorisation to institute a suit by a Director of the Company. 12. In view of above the order passed by the learned Executing Court is clearly without jurisdiction and has resulted into failure of justice. Consequently, the impugned order is set aside and the revision petition is allowed. 13. The parties through their counsel are directed to appear before the learned Executing Court on 10.9.2004 for further proceedings in accordance with law.