B.N. Sapru, J.
1. This is an execution second appeal filed by the judgment-debtor. There was a temple where the deity of Sri Guman Behari Joo Deo is installed. It lay within the territories of the erstwhile State of Charkhari. The Maharaja of Charkhari was the Shebait. It appears that after Independence the territory of Charkhari came to be administered by the State of Uttar Pradesh. The Collector of Hamirpur was appointed Administrator of the temple.
2. On 11-5-1951 a suit was filed on behalf of the Idol through the DistrictMagistrate, Hamirpur as Administrator. The suit was decreed on 11-5-1961 and a money decree was passed in favour of the Idol. On 8-10-1960 the Governor of Uttar Pradesh executed a Trust deed and created a trust called the Sri Guman Behari Joo, Rainpur Temple Trust by a deed registered on 18-8-1961. Among the recitals in the Trust deed were the following :
'Know all men by these presents that I, the Governor, the Uttar Pradesh (hereinafter referred to as 'the Settlor') do hereby constitute and creat a Trust te be called as Sri Guman Bihari Ju Ram-pur Temple Trust :
Whereas arising out of Article 11 of the covenant for the formation of the former United State of Vindhya Pradesh, an inventory of private properties of His Highness the Maharajadhiraja of Charkhari was settled between the Government of India and His Highness Maharajadhiraja Jahendra Singh Ju Deo Bahadur of Charkhari and in that connection it was decided that the temple of Sri Guman Bihari Ju, Rainpur and its attached properties, should be managed as a pub-lic trust; And whereas in consequence of the promulgation by the Governor-General of the Provinces and States (Absorption of Enclaves) Order, 1950, the management of the Rainpur Temple which formerly vested in the Ruler of the former Charkhari State, devolved on the Government of Uttar Pradesh (hereinafter called 'the State Government') as the authority in succession, and the Government of India has, after informing the said Maharaja-dhiraja authorised the State Government to settle and create a Trust for the management of the said Temple and its attached properties; And whereas the State Government has decided to create a Trust in the manner hereinafter appearing;'
Under the deed of Trust various trustees were appointed and the District Magistrate of Hamirpur, if he happened to be Hindu was also to be a trustee. The tenure of the trustees was also provided for. Thereafter cl. (3) provided that :--
'The Trustees aforesaid shall collectively be called 'the Board of Trustees', From amongst the Trustees the State Government shall appoint a person to be the Chairman of the Board of Trustees who shall exercise such powers and perform such duties as have been assigned to him by these presents.'
Thereafter Clause (4) provided :--
'All rights, title and interests in the said temple and the ownership of its properties, whether immovable or movable, shall stand transferred to, and shall vest in the said Trust, as from the date of execution of these presents.'
Clauses 12 to 16 run as follows :
12. The management and control of the property and affairs of the Trust shall be vested in Board of Trustees with power and authority to make due provision for the purpose of the administra-tion of the Trust and its properties and for the conduct of their business, in such manner and subject to such rules and regulations as the Board of Trustees may prescribe from time to time.
13. The trustees shall transact their business in a duly invited end assembled meeting which would ordinarily take place at least twice a year. The vote of majority shall prevail at their meetings. The Chairman shall have an additionalor casting vote in the case of equalityof votes.
14. The time and date and place of meetings shall be determined by the Chairman. On the requisition in writing by any of the Trustees, the Chairman shall convene a special meeting of the Board of Trustees for considering any matter mentioned in the requisition. Fifteen clear days' notice for an ordinary meeting and seven days' notice for aspedal meeting shall be given to each of the Trustees. Three Trustees shall form a quorum at all meetings of the Board of Trustees but no quorum shall be necessary for an adjourned meeting.
15. At meeting at which His Highness the present Maharajadhiraja is present he shall take the chair instead ofthe chair being taken by the permanent Chairman. But the day-to-day management of the Trust and enforcement of the decisions of the Board, including decisions reached at a meeting presided ever by his highness shall be the responsibility of the permanent Chairman.
16. The Chairman may with the approval of the State Government appoint a Secretary to the Board of Trustees and such Secretary shall carry out such duties under the direction, supervision and guidance of the Chairman as the Chairman may, with the approval of the Board of Trustees, assign or entrust to him from time to time.'
3. On 1-2-1963 an application for exe-cution of the decree obtained by theIdol against the judgment-debtor was filed in which the decree-holder applicant was described as follows :--
'Sri Guman Bihari Ju Deo, Mandir Rainpur Charkhari, Dwara Pt. Krishna Chandra Dwivedi,
Sd/- Gopi K. Arora
District Magistrate, Hamirpur
President, Rainpur Temple Trust,
4. The judgment debtor filed an objection dated 21-9-1960 which was dismissed in default on 22-4-1961. Subsequently, the judgment debtor filed another objection which has led to this appeal.
5. The objection was dated 21-10-1963 and ran as follows :--
'1. That the Collector as administrator had no right to file the suit on behalf of Shri Guman Bihari Ju Deo the decree-holder temple or the idol because he had not been validly appointed the Sarvarakar of the temple. As the suit was not properly filed the present decree is inexecutable. The application is liable to be dismissed.
2. That the decree having been obtained by the Administrator when the administrator ceased to function and a trust came into existence, it could be executed after the creation of the trust only by or on behalf of trustees and not by administrator or Sarvarakar. The trust ought to have been brought on record when the execution application was filed.
3. That even if the collector be one of the trustees he has not got the decree executed in his capacity as a trustee nor is he so authorised.
4. That the deed of trust is itself invalid and illegal.
5. That for the reason stated above the execution application is not maintainable and liable to be dismissed.'
6. The execution court dismissed the petition. It held that the objections raised were barred by the principle of constructive res judicata because the pleas taken in the objection could have been taken or had been taken in the previous objection which had been dismissed for default on 22-4-1961. It further held that the decree dated 11-5-1961 was in favour of the Collector as Sarvarakar and Administrator of that Mandir. Subsequently, under the Trust deed trustees were appointed and the Collector was the Chairman of the Trust Committee. Itheld that there was nothing in the provisions of Order 21 Rule 16, C.P.C. which debarred the original decree holder, whose name appeared on the face of the record, from executing the decree merely because some assignment had taken piece out of court.
7. The judgment debtor preferred an appeal. The appellate court has also dismissed the objections. The lower appellate court held that it was not open to the judgment debtor to plead that the decree was wrongly passed on the ground that the Administrator had not been validly appointed. According to the lower appellate court this objection was not open to the judgment debtor. The objection that the deed of trust was invalid was also not open to the judgment debtor. The further objection that the Deity could only be represented by the Maharaja of Charkhari was also held not to be open to the judgment debtor. Its other finding was that though no proceedings had been taken under Order 21 Rule 16, the creation of the trust would have no effect. The basic finding is that the decree is being sought to be executed by the original decree holder Sri Guman Bihari Ju Deo Birajman, Rainpur Mandir through the Administrator, The lower appellate court, however, held that the execution could not be allowed to proceed without mentioning the fact of the formation of the trust in the execution application and also without mentioning the names of the trustees and the Chairman of the Board of Trustees in the execution application. It accordingly allowed the appeal in part and directed that the execution court should order the decree holder to amend the execution application in the light of the observations in its judgment, and thereafter dispose of the execution application.
8. Aggrieved by the order of the lower appellate court the judgment debtor has filed the present appeal.
9. The first argument on behalf of the judgment debtor appellant is that the decree was a nullity as the suit had been instituted by the Collector, Hamirpur cum Administrator of the Idol, when the Maharaja of Charkheri who was the Shebait was there. It was submitted that it was only the Maharaja of Charkhari who, in his capacity as a Shebait could file the suit on behalf of the Idol. It is settled law that normally it is the Shebait alone who can file a suit on behalf of the Idol, but it is also equally well settled that in exceptional circum-stances persons other than a Shebait can Institute a suit on behalf of an Idol. In this connection a reference may be made to the judgment of a Division Bench of this Court in the case of Behari Lal v. Thakur Radha Ballabh Ji : AIR1961All73 , where it has been observed as follows : (at p. 77)
'It remains to consider the last submission of the learned counsel namely that the temple had no right to bring the suit through Jasodanandan.
In Mukherjea's Hindu Law of Religious and Charitable Trust (1962 edn.) at page 265 it is stated as follows :--
'The deity as a juristic person has undoubtedly the right to institute a suit for the protection of its interest. Se long as there is a shebait in office, functioning properly, the rights of the deity, as stated above, practically lie dormant and it is the shebait alone who can file suits in the interest of the deity. When, however, the shebait is negligent or is himself the guilty party against whom the deity needs relief, it is open to worshipper or other persons interested in the endowment to file suits for the protection of the debutter, It is open to the deity also to file a suit through some person as the next friend for recovery of possession of property improperly alienated or for other relief. Such a next friend may not unoften be a person who as a prospective shebait or a worshipper is personally interested in the endowment. How then are we to distin-guish between these two classes of cases and ascertain whether it is a suit by the deity or by the worshipper personally The answer would certainly depend upon the nature of the suit and the nature of the relief claimed. If the suit is not in the name of the deity, it cannot be regarded as a deity's suit, even though the deity is to be benefited by the result of the litigation. It would be the personal suit of the worshipper, the family member or the prospective shebait as the case may be. Again these persons are not entitled to claim any relief for themselves personally e.g. by way of recovery of possession of the property alienated or adversely possessed by a stranger.' The aforesaid statement of the position by Mr. Mukherjea answers the defendant's objection fully. In our Court it has been held that a suit can be brought in the name of an idol by a de facto manager. See Gopal Dett v. Babu Ram : AIR1936All653 . Also it has been held in B. Mahadeo Pd. Singh v. Karia Bharthi , by their Lordships of the Privy Council that a de facto mahant is entitled to maintain a suit. It has also been held in Darshan Lal v. Shibji Maharaj Birajman, (20 All LJ 977) : (AIR 1923 All 120), that a person claiming a mere benevolent interest in the fortunes of an idol cannot be permitted to sue in the name and as next friend of the idol. No doubt a shebait has authority to institute a suit in his own name to recover property belonging to the deity. See Jagadindra v. Hemanta Kumari Debi, (1904) 31 Ind App 203 at p. 210 (PC). It has been held in Administrator General of Bengal v. Bal-kissen : AIR1925Cal140 , that after the appointment of She-bait the right to sue for possession of the property with which the idol is endowed belongs to the Shebait and not to the idol. But the question which arises is if the Shebait is not willing to sue or cannot sue because he himself is responsible for the alienation which is to be questioned or if there is no de facto Shebait or mahant, idol, not being a sentient being, should become incapable of action and let its interest suffer?'
In the instant case, it appears that, or so it may be presumed that after the merger of Charkheri in U. P. the Collec-tor of Hamirpur had taken over the management of the idol and its properties in his capacity as Administrator. The circumstances in which the Collector of Hamirpur was appointed as Administrator have not been investigated. It is thus not open to the judgment-debtor appellant to raise this objection in the execution application. In any case, it appears that the Collector Hamirpur was functioning as the de facto manager of the Idol and in his capacity as such, he could being a suit. See in this connection Gopal Datt v. Babu Ram : AIR1936All653 , where it has been held that e suit could have been brought in the name of an idol by the de facto manager. The argument is accordingly rejected.
10. The next submission is that a trust had come into existence subsequent to the passing of the decree and the decree could only have been executed by the trustees. It is urged that the District Magistrate Hamirpur in his capacity as Chairman of the Trust could not execute the decree. The relevant parts ofthe trust deed have been quoted in this judgment. The trust deed does not authorise the President of the trust alone to institute legal proceedings. This argument has considerable force. The execution application was admittedly filed by the District Magistrate of Hamirpur in his capacity as President of the Trust, Obviously, unless he was authorised by the Trust deed to institute legal proceedings alone, he could not do so and all the trustees should have joined in the execution application.
11. The Court is aware that in view of the provisions of Section 1 of the Indian Trusts Act the Act will not apply to a public or private or religious endowments. However, the principles of. the English law of Trusts which have been incorporated in the Indian Trusts Act will apply to such Trusts. Section 48 of the Indian Trusts Act provides that where there are more trustees than one, all must join in the execution of the Trust except where the Instrument of Trust otherwise provides. Section 47 of the Trusts Act provides for the special circumstances in which a trustee may delegate his duties. Such delegation is only permissible where (a) the instrument of Trust so provides or (b) the delegation is in the regular course of business or (c) the delegation is necessary, or (d) the beneficiary being competent to contract consents to the delegation. None of these conditions are asserted to have existed when Shri K. Arora, District Magistrate, Hamirpur in his capacity as President, Rainpur Temple Trust filed the execution application; hence the decree could not be executed on the basis of the application as all the trustees had not joined in the applica-tion.
11A. The law in regard to the application of the English law of Trusts to public trusts in India was explained by the Bombay High Court in Phulchand v. Hukumchand, (AIR 1960 Bom 438), in the following words : (at p. 441)
'It is true that by Section 1 the previsions of the Indian Trusts Act are not made applicable to public trusts. Even so, the provisions of the Trusts Act are founded on general principles, and Rules of English Law. In matters which are not provided for, the Courts in India apply the principles and Rules of English Law on the subject unless they are inconsistent with the Rules and practice of this Court. (See Shivramdas v. B. V. Nerukar : AIR1937Bom374 ), Rambabu v. Committee of Rameshwar, (1899) 1 Bom LR 667 and Nathiri Menon v. Gopalan Nair, 39 Mad 597 : (AIR 1916 Mad 692). The principleg above stated, therefore apply to the present case.'
12. The lower appellate court was of the view that the decree is being sought to be executed by the original decree holder viz. Shri Guman Bihari Ju Deo Birajman, Rainpur Mandir, through the Administrator. The description of the person applying for execution of the decree has also been quoted in this judgment. The lower appellate court was, therefore, wrong in law in holding that the original decree holder had applied for execution of the decree. The lower appellate Court itself in its directions to the execution court directed that the execution application be amended and the fact that a trust had been formed and the names of the trustees and the name of the Chairman of the Board of Trustees be incorporated in the execution application before allowing it to proceed.
13. The learned counsel for the judgment debtor appellant has urged that the execution application was filed on the last date of limitation. The amendment when it was ordered to be made, defeated vested rights of the judgment debtor appellant. According to his submission the decree had become inexecutable, be-oause limitation had expired when the amendments were directed to be incorporated in the execution application. In this connection he has referred to a judgment of the Supreme Court in the case of L. J. Leach and Co. Ltd. v. Jardine Skinner and Co. : 1SCR438 , where it was observed as follows :--
'It is no doubt true that the Courts would, as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice. In Charan Das v. Amir Khan, 47 Ind App 255 : (AIR 1921 PC 50), the Privy Council observed : (at pp. 51, 52)
'That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal rightwhich has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case.'' Vide also Kisan Das v. Rachappa, (1909) ILR 33 Bom 644.'
14. He thereafter referred to another decision of the Supreme Court in the case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil : 1SCR595 , where the Supreme Court quoted with approval the remarks of the Privy Council in the case of Charan Dass v. Amir Khan, (AIR 1921 PC 50), which were to the following effect : (at p. 52)
'though there was full power to make the amendment, such power should not as a rule be exercised where the effect was to take away from a defendant a legal right which had accrued to him by lapse of time; yet there were cases where such considerations were outweighed by the special circumstances of the case.'
15. The question now before the court is whether the lower appellate court was justified in directing the amendments to be made. When the amendments were made a fresh execution application had become barred by limitation. The defect in the execution application was not merely technical. The execution application purported, on the face of it, to be filed by a person other than the person who had obtained a decree in favour of the Idol. Further, no special circumstances have been pointed out on behalf of the decree holder respondent to show why an amendment should have been allowed despite the limitation having expired for filing an execution application. It appears that despite an objection the respondents having notice of the objection filed on behalf of the judgment debtor appellant did not take steps either in the execution court or even at the appellate stage to have the defects removed, and the lower appellate court itself gave directions for the amendment of the execution application. In the circumstances of this case, it must be held that the amendment of the execution application was wrongly allowed.
15A. Another circumstance is that admittedly no steps were taken to comply with the provisions of Order 21 Rule 16 of the Code of Civil Procedure. Those steps have not been taken even today. In the Allahabad case of Umrao Singh v. Prahlad Singh : AIR1935All1001 , it was held that a decree could be executed by the original decree holder even though he had parted with his rights under the decree in favour of a third party. It was held that any private transactions cannot be taken cognizance of by a court. The creation of the trust was certainly a private transaction affecting the Idol. It was incumbent upon the Chairman and the Trustees to have taken steps under Order 21 Rule 16 C. P. C. when applying for execution of the decree which they did not do. This defect cannot be cured at this stage.
16. The trial court has held that the objections raised by the judgment debtor which has led to this appeal, were barred by the principles of constructive res judicata, as objections in a prior execution application had been dismissed in default. This view was clearly wrong. In Aley Rasul v. Seth Bal Kishan : AIR1937All446 , a division bench of this Court followed the decisions of a Full Bench of this Court in Genda Lal v. Hazari Lal : AIR1936All21 , and quoted the following observation of the Full Bench (at p. 29 of AIR)
'Where there has been an express ed-judication by the execution Court in the presence of the parties, then the question must be considered to have been finally decided, no matter whether it is raised again at a subsequent stage of the same proceeding or in a subsequent execution proceeding. (2) Where an objection is taken but is dismissed or struck off, even though not on the merits, and the application for execution becomes fructuous, the judgment debtor is debarred from raising the question of the invalidity of that application, but (3) Where an objection to execution is taken but it is not dismissed on the merits or is dismissed for default, and the application for execution does not become fructuous, the judgment debtor is not debarred from subsequently raising the question that that application was not within limitation, lastly, (4) Where no objection to the execution is taken but the application becomes partly or wholly fructuous and such fructification necessarily involves the assumption that the application was made within limitation, then after such fructification the judgment is debarred by the principle of res judicata from raising question that that application was not within limitation.'
17. The third proposition fully covers the instant case as the previous objection had been dismissed in default. As such there could be no application of the principles of constructive res judicata andthe execution court erred in holding to the contrary.
18. It has been urged on behalf of the decree holder respondent that in view of the provisions of Section 99, C. P. C. the errors, defects or irregularities in the execution application are such as do not affect the merits of the case, or the jurisdiction of the court. As has been held above, the defect in the execution application is such as to render it not maintainable in law. Therefore, the provisions of Section 99, C.P.C. do not help the decree holder respondent. This argument is accordingly rejected.
19. In the result, the appeal is allowed, the orders of the lower appellate court and of the execution court are set aside, and the execution application is dismissed. However, in view of the special circumstances of the case, there will be no order as to costs.