1. This is an execution first appeal against an order passed by the learned Additional Subordinate Judge of Benares dated 8th August 1931. The order purports to be one under Order 21, Rule 40, Civil P.C., but I have no hesitation in saying that it is a most unsatisfactory order under that provision. The facts are that the appellants before me were the defendants in a suit brought by the respondent to the present appeal. The respondent alleged in his plaint that he should be declared the lawful mahant of certain math properties inasmuch as one Mayanand Giri, the defendant, bad forfeited his rights to the gaddi of the said math. In that suit certain other defendants were impleaded on the ground that they were transferees from Mayanand Giri of the trust property. The trial Court held that Mayanand Giri had forfeited his rights to the property for various reasons and that the plaintiff was entitled to be declared a mahant of the property. As regards the defendants-transferees it came to the conclusion that the majority of them were transferees of certain personal properties of Mayanand Giri to which the plaintiff could not lay any claim. Some of such transferees are the appellants before me. The operative portion of the judgment as well as the decree of the first Court runs as follows:
The rest of the defendants will have their legal costs against the plaintiff. Every set of defendants will have separate set of costs.
2. I have got to interpret the above order. On the side of the plaintiff it is contended that the costs cannot be realised personally from him but that the successful defendants should look to the trust property for the realisation of their costs. It As an elementary principle that a Court executing a decree cannot go behind the express terms of the decree and if it is called upon to construe the decree it has to do so according to the plain meaning of the words of the decree. When the words are clear enough an executing Court cannot attribute some other meaning to them unless it has to do so in virtue of any enactment or rule having the force of law applicable to the particular case before it. To my mind in the present case the words are clear enough and according to their meaning the decree is executable against the plaintiff in any manner in which a decree for money may be executed against any ordinary litigant who is directed to pay costs.
3. It is however contended that the plaintiff brought a suit as a trustee of the math and he did not in any way try to benefit himself by the suit which he brought. According to the finding of the trial Court, it is clear that the plaintiff was careless in impleading the appellants before me as defendants to the suit inasmuch as the finding of the Court below is that these defendants are not transferees of any trust property but are transferees of the personal property of Mayanand Giri. In suits between strangers on the one hand, trustees on the other
the trustee is on no better footing than any ordinary plaintiff or defendant, for the circumstances of the trust cannot be allowed to affect the interest of a third person : see Lewin's Law of Trusts, p. 1265.
4. No cases have been cited before me which are in point in the matter of a suit between a trustee and a stranger except the Kayasthpathshala case. But in that case the order directing the trustees to get their costs from the trust property was made in the suit itself and was not left for the executing Court. If the plaintiff in the present case wanted to safeguard his interest he should have asked the trial Court to have made a provision in the decree to the effect that he would not be personally liable. In the absence of a definite provision to the contrary the ordinary rule that a trustee would be liable personally in a suit between himself and a stranger as stated by Lewin in his Law of Trusts would apply. Certain other cases dealing with the rights and liabilities of a receiver in insolvency have been cited before me by way of analogy and they all go to strengthen me in the view which I have taken. In Lachman Das v. Lakshmi Narain : AIR1932All288 it was held that:
where the decree dismissing the receiver's appeal directed him to pay the costs of the respondent, without stating that the costs should be paid out of the insolvent's estate the costs were executable personally against the receiver, though he had ceased to hold the office at the time of execution.
5. Their Lordships in the course of the judgment said that an action such as one which the receiver had brought was an ordinary action between two litigants and there was no reason why the successful defendant should suffer if the insolvent has no estate at all. In this case their Lordships referred to a case decided by their Lordships of the Calcutta High Court and. a case decided by their Lordships of the Madras High Court with approval. It was further held therein that if the receiver wanted to safeguard his personal interest he should have obtained an indemnity from the creditor or other person in whose interest he was starting the litigation:
In the absence of any express direction in the decree, it must be held that the receiver was in the first instance personally liable for the costs.
6. It is therefore clear that the trend of authority is in favour of the appellants before me and that the trustee is liable personally to pay the costs which have been incurred by the defendant to the suit brought by him.
7. It is however contended before me that even if the law is such as I have interpreted it to be, it is yet open to the executing Court to refuse arrest and detention in jail under the the provisions of Order 21, Rule 40, Civil P.C., even though the judgment-debtor might be liable personally, and that the present order by the learned Subordinate Judge is an order under Order 21, Rule 40, Civil P.C. I have already held that on this aspect of the case the judgment of the learned Sub ordinate Judge is unsatisfactory. He has first held that regard being had to the law laid down in the Kayasthpathshala case the plaintiff is not personally liable and he proceeds and says that having regard to the rules laid down in that case:
I think it is a fit case in which I should disallow the request of the various applicants for the mahant's arrest.
8. It would go to show that the reasons which prompted the learned Subordinate Judge to refuse the request of the decree-holders for arrest of the judgment-debtor were not contained specifically in Order 21, Rule 40, Civil P.C., but had their foundation in the principles laid down by the Allahabad High Court in the Kayasthpathshala case. If I were satisfied that the learned Subordinate Judge after considering the provisions of Order 21, Rule 40, Civil P.C., and concentrating his attention upon them had refused the request for arrest, I would not have interfered with his discretion. But as it is, it seems to have been influenced in two different ways in arriving at the conclusion to which he has arrived. One of them I have already mentioned before. The other ground is that he seems to think that a learned Judge of this Court has to a certain extent directed him to refuse arrest under Order 21, Rule 40, Civil P.C. The circumstances connected therewith are as follows: It appears that the, judgment-debtor had applied for stay of execution and a learned Judge of this Court while dismissing the application summarily had stated that it would be open to the judgment-debtor to apply to the executing Court to take action under Order 21, Rule 40, Civil P.C., and no further direction or suggestion was made in the order of the learned Judge of this Court dated 23rd June 1931.
9. For the reasons given above, I am of the opinion that this appeal should be allowed, and I accordingly allow it with costs. I leave it yet open to the judgment-debtor to apply to the Court below under Order 21, Rule 40, Civil P.C., and I also leave it open to the learned Subordinate Judge to pass proper orders under Order 21, Rule 40, civil P.C., regard being had to the conditions laid therein.