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2005 DIGILAW 2485 (RAJ)

L. Rs. of Sheshkaran v. L. Rs. of Kamlesh Ramsnehi

2005-09-16

GOPAL KRISHAN VYAS

body2005
Judgment Gopal Krishan Vyas, J.-Heard learned Counsel for the parties. 2. Initially, a suit was filed by Mahant Kamlesh Ramsnehi in the Court of Civil Judge, Jodhpur for cancellation of sale-dead executed by Haridas in favour of defendant-petitioner, Seshkaran. Late Kamlesh Ramsnehi was Mahant of Ramdwara known as Mahant Khimiyadas ji ka Ramdwara and he was nominated mahant in place of Mahant Mohan Ram. Ex parte decree was passed in the suit against petitioner Seshkaran. In pursuance thereof , Mahant Kamlesh Ramsnehi initiated execution proceedings for execution of the ex parte decree. Notice under Order 21 Rule 22, CPC was issued and, during the course of execution proceedings, Mahant Kamlesh Ramsnehi died as a result of which application was filed by his widow Smt. Rekha, daughter Monu through natural guardian mother Smt. Rekha and Smt. Chunni, mother of Mahant late Kamlesh Ramsnehi for bringing them on record as legal heirs of late plaintiff Mahant Kamlesh Ramsnehi. A reply was filed to the application by petitioner Seshkaran and, after considering objections, vide order dated 27.08.1994, they were taken on record as legal heirs of late Kamlesh Ramsnehi. Thereafter, in the execution proceedings the objection raised by the petitioners under Section 47 read with Section 151 of the Code of Civil Procedure were decided vide order dated 03.09.1994 and the objections filed under Section 47, C.P.C. were rejected. Against that order, the present revision petition has been filed challenging order passed by the learned Civil Judge (Sr. Dh.), Jodhpur in Execution Case No. 9/90 dated 03.09.1994. 3. It is stated by the petitioners that the original suit was filed by Kamlesh Ramsnehi being Mahant of the Ramdwara and it is stated in the plaint that he was nominated Mahant of the Khimiyadasji Ramdwara in place of Mahant Mohan Ram who had illegally contracted marriage, therefore, after the death of Kamlesh Ramsnehi his legal heirs viz., wife, daughter and mother cannot be substituted as decree-holder and they cannot execute the decree passed in favour of a Mahant of the Ramdwara. It is contended that his objection petition under Section 47, CPC has been dismissed by the executing Court which is illegal because the decree was passed in favour of Mahant late Kamlesh Ramsnehi as it was a decree in his capacity as Mahant of the Ramdwara and not a decree in his personal and private capacity. It is contended that his objection petition under Section 47, CPC has been dismissed by the executing Court which is illegal because the decree was passed in favour of Mahant late Kamlesh Ramsnehi as it was a decree in his capacity as Mahant of the Ramdwara and not a decree in his personal and private capacity. Further, it is contended that the representatives have no right to execute the decree and no valid discharge can be given by them to the petitioners for satisfying the decree. The successor of a Mahant can only be a Mahant and, therefore, the learned executing Court has committed grave error in dismissing the objections filed by the petitioners. It is also contended that the learned executing Court has committed grave error and irregularity in reaching the conclusion that the question of executability of the decree cannot be raised at the time of execution of the decree. It is also contended by learned Counsel for the petitioner that the legal heirs of the Mahant have no right to execute the decree passed in favour of Mahant unless and until another Mahant is appointed or in a capacity of a Mahant only. It is also contended that because in the plaint itself it was contended by Kamlesh Ramsnehi that he was nominated Mahant because Mahant Mohan Ram had illegally contracted marriage and as such he was nominated Mahant in place of Mohan Ram. Learned Counsel for the petitioner relied upon Judgment s rendered by the Supreme Court in the cases of M.P. Shreevastava vs. Mrs. Veena, AIR 1967 SC. 1193 , Dhurandhar Prasad Singh vs. Jai Prakesh University & Others, (2001) 6 SCC 534 and B.V. Patankar & Others vs. C.G. Sastry, AIR 1961 SC 272 . 4. In M.P. Shreevastavas case (Supra), the Supreme Court did not lay down ratio precisely on the questions relating to scope of power conferred upon the Court under Section 47 of the Code of Civil Procedure. 4. In M.P. Shreevastavas case (Supra), the Supreme Court did not lay down ratio precisely on the questions relating to scope of power conferred upon the Court under Section 47 of the Code of Civil Procedure. Therein, the question before the Court was with regard to scope and applicability of the provisions of Order 21 Rule 2, C.P.C. on the questions relating to execution, discharge or satisfaction of the decree and, therefore, concluding the judgement their Lordships of the Supreme Court held that there is no antithesis (in the Judgment ) between Section 47 and Order 21 Rule 2: the former deals with the power of the Court and the latter with the procedure to be followed in respect of a limited class of cases relating to discharge or satisfaction of decrees. 5. In B.V. Patankars case AIR 1961 SC 272 (Supra), since the executability of the decree was subject to the bar of operation of an existing statute, the Courts under Section 47, read with Section 151, CPC was the point for consideration and, therefore, in the facts and circumstances of the present case, the rule laid down therein does not support the case of the petitioner. The controversy in the present case is not directly on the question of power of the executing Court under Section 47 of the Code of Civil Procedure. The question herein is rather fettered to the appreciation of the executing Court on the objection raised by the petitioners and, therefore, the point for consideration is merit of the objection and not the scope of the power conferred under Section 47 of the Code of Civil Procedure upon the executing Court. 6. The Judgment in the case of Dhurandhar Prasad Singh, 2001 (6) SCC 534 (Supra), does not support the petitioners case though, on consideration of the same, I am of the view that the ratio decided in the case with regard to power of the Court under Section 47, C.P.C. is apposite to the facts and circumstances of the case on hand. 7. Counsel for the petitioner next drew attention of the Court to the Judgment s of this Court delivered in Janakidas & Another vs. Mahant Dhangir & Others, 1990 (2) RLR 672 and Smt. Gyan Devi vs. State of Rajasthan, 1978 RLW 509. I have carefully gone through the Judgment s. 8. 7. Counsel for the petitioner next drew attention of the Court to the Judgment s of this Court delivered in Janakidas & Another vs. Mahant Dhangir & Others, 1990 (2) RLR 672 and Smt. Gyan Devi vs. State of Rajasthan, 1978 RLW 509. I have carefully gone through the Judgment s. 8. Per contra, learned Counsel for the respondents contended that the question raised by the petitioners whether a married person can be appointed as Mahant was neither the subject-matter nor agitated by petitioners in the suit proceedings and, therefore, such objection could not lie in the execution proceedings. It is contended that in the execution proceedings after the death of late Kamlesh Ramsnehi application was filed by the legal heirs of late Mahant Kamlesh Ramsnehi for being taken on record as legal representatives and petitioners filed reply to it and after considering the said reply they were taken on record. Learned Counsel for the respondents submitted that the executing Court has rightly rejected the objection under Section 47, read with Section 151, C.P.C. on the ground that it was a question to be raised at the time of the trial in the suit. Learned Counsel for the respondents argued that there is no illegality in order passed by the executing Court and the same does not warrant interference in this revision petition. 9. For the resolution of the controversy herein, Section 47 of the Code of Civil Procedure may be looked at analytically which empowers the executing Court to determine all questions relating to the execution, discharge or satisfaction of the decree. The legislature under Section 47 has specifically barred suit for determination of such questions as relate to execution, discharge or satisfaction of the decree. It may be emphasized here that Section 47 does not mention "all questions relating to the suit" and has specifically narrowed down the power of the Court under Section 47 to determine all such questions as relate to execution, discharge or satisfaction of the decree. The executing Court while rejecting the objection of the petitioners categorically observed that the points raised in the objections should have been raised in the suit proceedings inasmuch as what constituted an issue for the decision of the suit could not be entertained by the executing Court while executing the decree passed in that suit. The executing Court while rejecting the objection of the petitioners categorically observed that the points raised in the objections should have been raised in the suit proceedings inasmuch as what constituted an issue for the decision of the suit could not be entertained by the executing Court while executing the decree passed in that suit. The power of the executing Court is limited to execution, discharge or satisfaction of the decree and, in exercise of power under Section 47, it cannot open up for determination an issue which had not been decided in the suit so long as a direct nexus is established with the executability of the decree. Both the objections raised by the petitioners before the executing Court ought to have been taken at the time of the trial in the suit which, by their very nature, could only have been decided by the trial Court after framing necessary issues. 10. In Dhurandar Prasad Singh vs. Jai Prakash University & Others, 2001 (6) SCC 534 , their Lordships of the Supreme Court observed as under: -"The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus, it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing." 11. Omission of pleadings does not affect validity or otherwise of a decree and, therefore, would not come in the way of executability of the decree passed in the suit. The objections filed by the petitioners do not relate to the executability of the decree and directly strike at the validity of the decree on the grounds which would have been points of issue had they been raised in the suit for decision and, therefore, the same can only be raised in proceedings set up for challenge to the decree. The objections filed by the petitioners do not relate to the executability of the decree and directly strike at the validity of the decree on the grounds which would have been points of issue had they been raised in the suit for decision and, therefore, the same can only be raised in proceedings set up for challenge to the decree. The petitioners in their application under Section 47, read with Section 151 of the Code of Civil Procedure did not set up the case that the decree has been fraudulently obtained or that the decree for the reasons stated is a nullity being ab initio void . The objections of the petitioners have considered by the executing Court and perusal of the order impugned manifestly reveals that the objections have been objectively considered in relation to the execution of the decree. When the executing Court indicated in the order impugned that such point should have been raised in the suit it has lawful meaning that the points raised in the suit it has lawful meaning that the points raised could have been decided only by framing issues in the suit had they been raised at apposite time. What is relevant for the decision of the suit would not necessarily be a question arising in between the parties to the suit relating to execution, discharge or satisfaction of the decree passed in the suit. The proposition is well settled that what should precede the decree cannot follow it. The executing Court in exercise of jurisdiction under Section 47 of the Code of Civil Procedure cannot upset the decree by deciding question with reference to and with relevance to the suit. The law in this regard may be more explicably proposed if we consider the circumstances of questions raised before the trial Court and decided by it, in that circumstances, they cannot again be raised in execution proceedings. The corrolory proposition is that questions which ought to be raised before the trial Court cannot be raised in the execution proceedings. 12. Aside from the above discussion, it may be mentioned that on 110.2004, in view of the questions involved in this case, the presence of Assistant Commissioner, Devasthan Department, Jodhpur was considered necessary and, therefore, the learned Additional Advocate General Shri K.L. Thakur was directed to put in appearance. 12. Aside from the above discussion, it may be mentioned that on 110.2004, in view of the questions involved in this case, the presence of Assistant Commissioner, Devasthan Department, Jodhpur was considered necessary and, therefore, the learned Additional Advocate General Shri K.L. Thakur was directed to put in appearance. On 01.09.2005, Shri K.L. Thakur was again directed to file reply within two days, if any. A reply affidavit has been filed by Assistant Commissioner, Devasthan, Jodhpur alongwith document being gazette notification enlisting the Devasthan controlled and regulated temples and religious institutions. The reply affidavit is taken on record. From the perusal of the said gazetted list is revealed that the said Khimiyadas ji ka Ramdwara is mentioned at S. No. 8 in Schedule-kha of Devasthan managed and controlled self -dependent temples and religious institutions. In view of its being self -dependent, though being Devasthan controlled, following the principles enunciated in Rambir Das & Another vs. Kalyan Das & Another, 1997 (3) JT (SC) 356, I do not think it is not necessary to issue any directions to the Devasthan Department in this revision petition arising out of decree passed in the suit field by the Mahant of the Ramdwara inasmuch as maintainability of the suit by the Mahant cannot be impuged. 13. Adverting to claim of the legal heirs of late Kamlesh Ramsnehi to seek execution of the decree, it may be mentioned that the validity of the order allowing them to be taken on record was not challenged. Besides, the question is relegated on appreciation of the fact that the decree is not for title of the personal property and more particularly, unless specific rule or provision with regard to inheritance ousts them from claiming execution of the decree as legal heirs of Mahant late Kamlesh Ramnehi it is not necessary to delve into the question of devolution. Further, so far as title is concerned it is independent of the controversy involved in present proceedings and cannot be gone into in the present proceedings. 14. In view of the foregoing discussion, the revision petition fails and is hereby dismissed.