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B.S. Mahadev Singh and anr. Vs. Nandgopaldass - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 121/1 of 1955
Reported inAIR1960AP423
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92 and 115; Hyderabad Endowment Regulation, 1349 F
AppellantB.S. Mahadev Singh and anr.
Appellant AdvocateK.R. Kuppuswami Iyengar, Adv.
Respondent AdvocateC. Seetharamayya, Adv.
civil - recovery of amount - sections 92 and 115 of code of civil procedure, 1908 and hyderabad endowment regulation, 1349f - application filed before district judge for recovery of amount misappropriated by 'mahant' and for removal of 'mahant' from his post - district judge decreed for rendition of accounts but dismissed application for removal of 'mahant' - decree modified by appellate authority - application converted to suit - appeal before high court questioning conversion - held, endowment regulation does not affect court's jurisdiction - set aside judgment and remanded case back to lower court for disposal. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj]..........are the decree-holders whose application for execution of a decree under section 92 of the civil procedure code has been dismissed by the district judge, secunderabad. on 10-3-1943, the appellants bad filed in the then district judge's court, of secunderabad, o. s. no. 8 of 1943 for the removal of the judgment-debtor-respondent from the office of the mahanth of narasingh mandir, secunderabad, for framing of a scheme and for rendition of accounts. the suit was decreed by the district judge of secunderabad on 17-9-1945, directing the mahant to render accounts, to refund rs. 2,500/- which sum he had misappropriated; and he dismissed the request for the removal of the mahant. the decree was modified by the appellate authority on 18-11-1946 and it directed as follows: '1. that the.....

Ansari, J.

1. The two appellants are the decree-holders whose application for execution of a decree under Section 92 of the Civil Procedure Code has been dismissed by the District Judge, Secunderabad. On 10-3-1943, the appellants bad filed in the then District Judge's Court, of Secunderabad, O. S. No. 8 of 1943 for the removal of the judgment-debtor-respondent from the office of the Mahanth of Narasingh Mandir, Secunderabad, for framing of a scheme and for rendition of accounts. The suit was decreed by the District Judge of Secunderabad on 17-9-1945, directing the Mahant to render accounts, to refund Rs. 2,500/- which sum he had misappropriated; and he dismissed the request for the removal of the Mahant. The decree was modified by the appellate authority on 18-11-1946 and it directed as follows:

'1. That the defendant shall file an inventory within one month of all moveable and immoveable property belonging to the temple.

2. That the defendant shall account for all the amounts received by him under Ex. P-1 (mortgage deed executed by the defendant in favour of Prodduturi Mallayya for H. S. Rs. 6,000). P-4 (mortgage deed executed by defendant in favour of Kaveti Veeramalliah for H. S. Rs. 8,000/-), P-21 (Lease deed executed by the defendant in favour of Vaman Naik for H. S. Rs. 12,000/-).

3. That the defendant shall maintain regular accounts each year with regard to temple income and expenses and make these accounts available for inspection, when required by the plaintiff, or by the temple worshippers or devotees.

4. That the defendant shall file the scan factory accounts in the District Court Secunderabad, within a month from this date for inspection by the plaintiffs who shall be at liberty to place on record their objections to the same within a further (or another further month) period of one month.

5. That the defendant shall deposit with the competent authority in the Hyderabad State, within six months the sum of Rs. 2,500 expended for his daughter's marriage, admittedly out of temple funds. 6. That the defendant shall be liable to be removed from the mahantship. on failure, to perform any of the above obligations, on the application made by the plaintiffs either before the Ecclesiastical Department of H. E. H. the Nizam's Government (if this is within its competence) or any competent Civil Court having Ecclesiastical jurisdiction under the State Government, and such department (if it is within its competence) or court shall have power to modify the scheme in such manner as may be thought fit.'

The last direction in the decree is understandable because there had come into operation earlier to the passing of the appellate decree an agreement between the then Nizam's Government and the Resident. The agreement which is generally known as the rendition agreement, among other things, provided by its Clause 13 of certain judicial arrangements. This clause read with Schedule K had provided, among other things, for continuance of the appellate jurisdiction in pending cases and for their not being affected by the conclusion of the agreement. It follows that this decree, notwithstanding the earlier rendition agreement, was passed by the Court of competent jurisdiction and would be executable either by a suit or by way of an appropriate execution petition. Now there have been already three execution petitions without achieving substantial relief to those who have the decree in their favour.

The first was prior to 1953 and against it various pleas were taken on behalf of the judgment-debtor for his removal from the Mahantship on account of his non-compliance with certain directions and the Court granted him some time to deposit into the court the amount directed by the decree. Some of the pleas by the judgment-debtor did not find favour with the court; he went in appeal to the High Court, but that appeal was dismissed for default of appearance. The next execution petition was on 2-2-1953, in which a plea of non-execulability of the decree was taken. But in view of the stay orders of the High Court in the appeal arising out of the earlier execution, the petition was dismissed. The third Execution Petition is the one giving rise to this appeal. The petition seeks the following reliefs:

(1) Judgment-debtor be removed from the office of Mahantship.

(2) Moveable and immoveable property may be attached to realise Rs. 2,500 due to decree-holders under the decree.

(3) Judgment-debtor should be called upon to submit accounts.

(4) Decree-holders should be put in possession of the soap factory.

This petition has been dismissed on the ground that the District Judge's Court had neither exclusive nor simultaneous jurisdiction to execute the decree.

2. The counsel for the appellants has challenged the decision on various grounds. He has argued that a direction in a decree made under Section 92 of the Civil Procedure Code may be directive and executable by a Civil Court and should the executing court find the decree to be such, insistence on a fresh suit under Section 92 of the Civil Procedure Code is not necessary. In support of his contention, he relies on the decision in Thyagarajaswami Devasthanam Tiruvalur v. Balayee Animal, AIR 1928 Mad 81, wherein Ramesam J. at p. 68, observes as follows:

'It is not always that decrees of courts, even where executable, actually provide for their beingenforced in execution. Where a decree directs the defendant to pay some money to the plaintiff, it is executable from its very nature and one does not expect a provision in the decree that it shall be enforced in execution. That may be so in a plain case, and it may be that in ambiguous cases a provision of the kind removes the ambiguity and solves the difficulty. When there is no such provision it is a difficult matter to decide whether a particular clause in a scheme is executable or not'.

We do not find the aforesaid observation of the learned Judge inconsistent with what has been held in the earlier Full Bench decision in Veeraraghavachariar v. Advocate-General of Madras, AIR 1927 Mad 1073 (FB). Therein it was held at p. 1078 as follows:

'I will, therefore, answer the question put to us by one joint answer, namely, that the reservation by the court to a person or persons to apply for a relief which will come within Section 92 C. P. C. is ultra vires, but that if such reservation does not offend in this way or against any other provision of law, it may be useful or advisable for carrying out the provisions of the scheme already framed.'

Reference may also be made to the decision in Subbarao v. Venkatanarasimha Rao, : AIR1951Mad736 wherein it was held that if a provision in a scheme decree is inexecutable, the execution application, should in such a case, be allowed to be converted into a suit on condition that proper court-fee is paid within the time fixed. It was further held that the particular decree in the case was executable. The execution Court in this case has failed to decide the question it was called upon to decide on grounds which, we find unsatisfactory. It has held that the decree, because of the provisions of paragraph 6. contemplated its being executed or enforced by the Hyderabad Endowment Regulation. We do not find in the Regulation any provision which authorises the Department to execute a decree by compelling the trustee to deposit money in order to compensate the trust for the losses that have been caused on account of his wrongful acts.

The Department has also no power of attachment and sale of the properties should the trustee fail to deposit the money. The executing court in this case has assumed that it has no jurisdiction to execute where the decree is executable or frame afresh a scheme under Section 92 of the Civil Procedure Code. The Regulation in no way affect the jurisdiction of the Civil Court under Section 92 of the Civil Procedure Code. Indeed even when the first execution petition was filed in the case the jurisdiction of Civil Court was not excluded because of the Regulation, or the Hyderabad Civil Procedure Code contained provisions similar to Section 92. and they were not repealed by the Regulation. It follows that the executing court in this case is not barred from acting according to the decision in : AIR1951Mad736 . It is also clear that a direction for removing the trustee on failure to pay the money may not be the only consequence of the failure to carry out the directions contained in the decree.

The decree does not intend the trustee in this case to be benefited by his own breach and not to compensate the trust. Nor do we think that the suit under Section 92 C. P. C. directing payment of money into court would ever be effective if the direction be held not to he executable, for a defaulting trustee would then disregard the direction without the adequate sanction of his properties being attached and sold. Therefore it has to on determined in this context whether the provision about the payment of money in the decree is executable or otherwise. The counsel for the respondent has not succeeded in satisfying us about his client's willingness to discharge the obligation and it does not add to the credit of his client that breaches of trust committed by him should continue unsatisfied for nearly thirteen years.

He has pressed before us the objection that no appeal lies against the orders of the execution Court, We do not think the objection to be of much assistance; for, where due to an error of law there be a failure to exercise jurisdiction, it can be revised in exercise of the powers under Section 115, Civil Procedure Code. We are clear that the lower court has territorial jurisdiction to execute the decree. We are also clear that the Court has territorial jurisdiction to entertain a suit under Section 92 of the Civil Procedure Code. In these circumstances, we set aside the judgment and remand the case to the executing court to deal with the execution petition firstly by ascertaining what Darts of the decree sought to be executed are executable and also to allow the decree-holders should they so desire, to convert part of their execution petition into a suit under Section 47(2) of the Civil Procedure Code. The lower court would expedite the proceedings as it has been unnecessarily prolonged by pleas which are hardly of substance. Accordingly, the order of the lower court is set aside and it is directed to proceed as indicated above. The respondent will pay the appellant's costs of this appeal whatever may happen to the result of the execution petition.

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