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2011 DIGILAW 2374 (HP)

Gurmeet Kaur v. R. S. Puran Mal Trust Shimla

2011-08-08

KULDIP SINGH

body2011
JUDGEMENT Kuldip Singh, Judge. The judgement-debtors have filed this revision against the order dated 1.6.2009 passed by learned Rent Controller (V), Shimla in case No. 3/10 of 2006. 2. The facts in brief are that respondent-decree holder had filed a petition, under Section 14 of the H.P. Urban Rent Control Act, 1987 (for short, the Act) against the predecessor-in-interest of petitioners-judgement debtors, which was allowed by the learned Rent Controller (V), Shimla on 30.11.2005. The appeal filed, under Section 24 of the Act, against the ejectment order dated 30.11.2005 is pending before the appellate authority. It has been stated that appellate authority has not stayed the execution of order dated 30.11.2005. The decree holder has filed execution petition No. 3/10 of 2006 for executing the order dated 30.11.2005. 3. The decree holder in the execution petition has filed objections No. 4-II of 2009. It has been stated that ejectment order dated 30.11.2005 has been passed by the Rent Controller (V), Shimla, and, therefore, the Civil Judge (Junior Division), Court No. V has no jurisdiction to execute the ejectment order. The rent petition No. 45-2 of 2000 was filed by R.S.Puranmal Trust Shimla through its President/ Secretary. The said petition was not maintainable inasmuch as all the trustees had not joined as petitioners, which is not the spirit of Section 48 of the Indian Trust Act, 1882 (for short, Trust Act). 4. In the appeal filed by the judgement debtors against the order dated 30.11.2005, the decree holder has realised the defect in the main ejectment petition, and, therefore, the decree holder has filed an application under Order 1 Rule 10 CPC seeking permission to implead all the trustees as parties in the ejectment petition. The judgement debtors are contesting that application also. It has been stated that in view of filing of application under Order 1 Rule 10 CPC by the decree holder in appeal for impleading all the trustees in Rent Petition No. 45-2 of 2000, the petition filed by R.S.Puranmal Trust through the President/ Secretary is not maintainable and order dated 30.11.2005 passed in Rent Petition No. 45-2 of 2000 is not executable. 5. 5. The ejectment order dated 30.11.2005 has not attained finality in view of pendency of appeal against the order dated 30.11.2005, hence interest of justice requires that during the pendency of the appeal, the execution petition may be stayed, failing which the appeal will become infructuous. The eviction order sought to be executed is otherwise illegal, inoperative and not executable. 6. The decree holder has contested the objections. It has been submitted that objections raised by the judgement debtors were already taken during the trial of the eviction petition. The ejectment order is to be executed by the Rent Controller as a decree of the civil court under the Act. The eviction petition was preferred by a duly authorized Secretary of the Trust. The judgement debtors did not raise objection regarding the competency of the Secretary to file the petition during trial. The appellate authority has not stayed the execution. The judgement debtors have failed to deposit the arrears of rent. 7. The learned Rent Controller dismissed the objections on 1.6.2009. The judgement debtors had filed Civil Misc. Appeal No. 30- S/13 (b) of 2008 against the order dated 1.6.2009, which was dismissed by the appellate authority (II), Shimla on 5.10.2010 on the ground of maintainability, hence present revision petition challenging the order dated 1.6.2009. 8. I have heard the learned counsel for the parties. Mr. Bhogal, learned Senior Advocate has submitted that ejectment petition filed by the decree holder was incompetent in view of Section 48 of Trust Act. This defect has been realised by the decree holder, and, therefore, an application for impleadment of all trustees of the trust has been filed in the appeal by the decree holder, which is pending before the appellate authority against the ejectment order dated 30.11.2005. The foundation of the rent petition No. 45-II of 2000 in which ejectment order dated 30.11.2005 has been passed is not in conformity with law, therefore, the judgement debtors have a right to raise this objection and executing court has jurisdiction to consider the defect which goes to the root of the ejectment order dated 30.11.2005. The fact that decree holder has filed an application in the pending appeal against the ejectment order dated 30.11.2005 for impleading all trustees of R.S. Puranmal Trust in the ejectment petition No. 45-II of 2000 establishes that ejectment petition, which has been filed by the decree holder is not competent. The fact that decree holder has filed an application in the pending appeal against the ejectment order dated 30.11.2005 for impleading all trustees of R.S. Puranmal Trust in the ejectment petition No. 45-II of 2000 establishes that ejectment petition, which has been filed by the decree holder is not competent. The learned counsel for the respondent has supported the impugned order. He has submitted that executing court cannot go behind the decree. The appellate authority has not stayed the execution of order dated 30.11.2005, therefore, no fault can be found with the order dated 1.6.2009. 9. The learned Rent Controller has allowed rent Petition No. 45-II of 2000 on 30.11.2005 and passed the ejectment order against the judgement debtors. The appeal has been filed by the judgement debtors against the order dated 30.11.2005, but in the appeal no stay has been granted for executing the order dated 30.11.2005. The ejectment order passed under the Act is to be executed like a decree of civil court, therefore, there is no substance in the objection that execution petition is not executable by the Civil Judge (Junior Division) Court No. V, Shimla, who is also Rent Controller No. V, Shimla. This apart, one officer is having both the powers of Rent Controller and Civil Judge (Junior Division), hence execution petition is executable by the Rent Controller (V) –cum- Civil Judge (Junior Division), Court No. V. 10. The section 48 of the Trust Act provides that when there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides. The learned counsel for the judgement debtors has relied Atmaram Ranchhodbhai vs. Gulamhusein Gulam Mohiyaddin and another AIR 1973 Gujarat 113 (FB), in which it has been held that unless the instrument of trust otherwise provides, all co-trustees must join in filing a suit to recover possession of the property from the tenant after determination of the lease. No one single co-trustee, even he be a managing trustee unanimously chosen by the co-trustees, can maintain such a suit against the tenant without joining the other co- trustees. No one single co-trustee, even he be a managing trustee unanimously chosen by the co-trustees, can maintain such a suit against the tenant without joining the other co- trustees. All co-trustees must be joined in the suit and if any one or more of them are unwilling to be joined in the suit as plaintiffs or for some reason or the other it is not possible to join them as plaintiffs, they must be impleaded as defendants so that all co-trustees are before the court. 11. In Duli Chand vs. M/s Mahabir Pershad Trilok Chand Charitable Trust, Delhi AIR 1984 Delhi 145, it has been held that trustees are owners of the property. They all have to be joined as parties to the suit, but they can execute power of attorney allowing them to be represented by some other co-trustees. In both the aforesaid cases relied by the learned counsel for the judgement debtors, the question considered was that all the trustees should be joined as parties in the suit. The aforesaid cases are not on the point whether executing court can go into the question of effect of non- joinder of all trustees in the suit and whether the decree passed in absence of all the trustees would be executable or not against the judgement-debtor. 12. The learned counsel for the respondent has relied Kali Charan Keshan and others vs. Vishvanath and another (2003-2) 134 PLR 562, wherein after noticing clause 26 of the trust-deed, the court has held that said clause authorized the trustees to delegate the powers. In that case Seth Kirorimal Charity Trust filed a petition through their attorney for eviction of tenant and sub-tenant. The judgement again is of no help to the issue involved in the present case, inasmuch as in Kali Charan Keshan, clause 26 of the trust – deed specifically authorized the trustees to delegate the powers and the issue was raised in the ejectment proceedings and not in execution petition. 13. In Trust Shri Laxmi Narain Dev at Barhtal Trust vs. IInd Additional District Judge, Varanasi 2004 (1) RCR 64, it has been held that suit for ejectment of tenant by one co-owner in the absence of other co-owner is quite maintainable. The same principle applies to the trustees also. In Warron Halliburn & Ors. vs. XIIIth Additional District & Sessions Judge, Agra & Ors. The same principle applies to the trustees also. In Warron Halliburn & Ors. vs. XIIIth Additional District & Sessions Judge, Agra & Ors. 2007 (2) RCR 108, it has been held that it is difficult to accept that a suit on behalf of a co-trustee is not maintainable under Section 48 of the Indian Trusts Act, which shall have no application in respect of a suit instituted by a co-lessee/ co-landlord against a tenant for ejectment, keeping in view the definition of landlord given under Rent Control Act. The definition of ‘landlord’ in the Rent Control Act considered was like this, “landlord”, in relation to a building, means a person to whom its rent is or if the building, were let would be, payable, and it includes, except in Clause (g), the agent or attorney, of such person. The definition of ‘landlord’ under the Act is more wider as considered in Warron Halliburn by the court. 14. It has been held in Satish Kumar and another vs. Shri Nanu Ram Jain Charitable Trust and another 2009(2) RCR 133, that the institution of the proceedings by the Secretary of the Trust when such a person had been admitted to be the landlord was, therefore, definitely maintainable. 15. The objections of the judgement debtors are referable to Section 47 of Code of Civil Procedure. There is no objection that ejectment order dated 30.11.2005 is illegal on account of inherent lack of jurisdiction. It emerges from the submissions made on behalf of the judgement debtors that at the most the order dated 30.11.2005 is irregular. The executing court has limited jurisdiction to consider the executability of the decree. The distinction is to be drawn by the executing court between irregular decree and the decree passed for want of inherent lack of jurisdiction. 16. The Supreme Court in Rafique Bibi (dead) by LRs vs. Sayed Waliuddin (dead) by LRs. And others (2004) 1 SCC 287, has held as follows:- “A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. And others (2004) 1 SCC 287, has held as follows:- “A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.” 17. The Supreme Court in Balvant N. Viswamitra and others vs. Yadav Sadashiv Mule (dead) through LRs. And others (2004) 8 SCC 706 has held that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected to in execution or collateral proceedings. 18. The judgement debtors in the present case have already challenged the order dated 30.11.2005 in appeal, which is pending. It is for the appellate authority to consider the objection whether petition filed by the decree holder is not in conformity with Section 48 of the Indian Trust Act, 1882, if such objection is pressed before the appellate court. In so far execution proceeding is concerned, the executing court cannot go behind the decree once a decree has been passed, which is not shown to be suffering from inherent lack of jurisdiction. This is not the case of the judgement debtors that Rent Controller had no jurisdiction over the subject matter when he passed the ejectment order dated 30.11.2005. 19. It has also been contended on behalf of the judgement debtors that since appeal is pending before the appellate authority against the order dated 30.11.2005, therefore, in the interest of justice the executing court should have stayed the execution till the disposal of the appeal by the appellate authority. It is admitted case of judgement debtors that appellate authority has not granted the stay of execution. Once the execution petition has been filed for executing the order dated 30.11.2005, the executing court has no option but to proceed with the execution. It is admitted case of judgement debtors that appellate authority has not granted the stay of execution. Once the execution petition has been filed for executing the order dated 30.11.2005, the executing court has no option but to proceed with the execution. The executing court cannot wait indefinitely till the decision of the appeal unless superior court stays the execution of ejectment order dated 30.11.2005. Thus seen from any angle, there is no merit in the revision, which is liable to be dismissed. 20. No other point was urged. 21. In view of above discussion, revision fails and is accordingly dismissed with no order as to costs CMP No. 1369 of 2010. 22. In view of disposal of main petition, CMP No. 1369 of 2010 is also disposed of. **************************************************************************