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Darshan Singh Vs. Hari Nath - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberExecution Second Appeal No. 4D of 1959
Judge
Reported in3(1967)DLT459
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 8
AppellantDarshan Singh
RespondentHari Nath
Advocates: Bishamber Day and; Shyam Kishore, Advs
Cases ReferredRodia Goundar v. Velandi Gondar
Excerpt:
the case discussed the validity of the execution of decree against the co-nominees, who were nto parties to the suit - the defendant was sued in a representative capacity as per order 1 rule 8 and section 11 of the civil procedure code,1908, and a decree for declaration and permanent injunction was passed - it was held that, the decree could nto be passed against the co-nominee - .....july 1937 and a decree for declaration and permanent injunction was passed. (2) in april, 1956 the present execution application was filed by the respondent herein against the appellant herein on the allegation that contrary to the injunction granted in the suit, rooms in rarndwara have been let out to tenants. before proceeding further, two things must -be pointed out, one is, that the defendant nirbhe ram was imp leaded in the suit as arepresentative of the sect under order i, rule 8 civil procedure code and the second is, that the appellant herein became a mahant in 1955 as successor to nirbhe ram and the respondent herein also is nto the original plaintiff in the suit but a legal representative. (3) in the execution application, principally two defenses were put forward-(i) it was.....
Judgment:

M.M. Ismail, J.

(1) One Damodar Dass filed a suit against Nirbhe Ram of Shahpura (Rajasthan) for himself and representing Ram Bhais and Ram Sanahies residing in Katra Nil, Chandni Chowk, :Delhi for adeclaration that the defendant and toher sadhus and fakirs belonging to Ram Bhai sect have no right to let out abuilding which is called Ramdawara or any portion thereof to any tenant or tenants and for a permanent injunction restraining the defendant -and his followers fakirs and Sadhus of Ram Bhai sect from committing any of the said acts. The said suit was disposed of on 30th July 1937 and a decree for declaration and permanent injunction was passed.

(2) In April, 1956 the present Execution application was filed by the respondent herein against the appellant herein on the allegation that contrary to the injunction granted in the suit, rooms in Rarndwara have been let out to tenants. Before proceeding further, two things must -be pointed out, one is, that the defendant Nirbhe Ram was imp leaded in the suit as arepresentative of the sect under Order I, Rule 8 Civil Procedure Code and the second is, that the appellant herein became a mahant in 1955 as successor to Nirbhe Ram and the respondent herein also is nto the original plaintiff in the suit but a legal representative.

(3) In the execution application, principally two defenses were put forward-(i) it was time-barred, and (ii) neither the appellant herein or the respondent herein was properly brought on record as legal representatives of the original decree-holder and judgment-debtor. buth these defenses did nto find favor with the two courts below and hence the present second Appeal.

(4) I am of the view that the present Execution appeal has to be allowed on a very short ground. Admittedly, the present appellant was nto a party to the decree and if at all he could only be deemed to be a party by virtue of the fact that the defendant in the suit was sued in a representative capacity representing the sect and the present appellant being a member of the sect was represented by Nirbhe Ram to the extent to which Order I, Rule 8, Civil Procedure Code provides for such representation. The Madias High Court in Full Bench decision reported in Rodia Goundar v. Velandi Gondar had taken the view that though for the purpose of resjudicata under Section 11 Civil Procedure Code, a decree for injunction obtained in a suit instituted in accordance with the provisions of Order I, Rule 8 Civil Procedure Code, will be binding on all members that belong to the class who was sought to be represented, still the decree cannto be executed against persons who were co nomine nto parties to the suit. If at all, a separate suit for injunction will have to be filed against such person or persons. On the basis of the principles laid down in this decision, it is clear that the present application cannto be procaeded against the appellant herein. The learned counsel for the respondent contended that it has been admitted that the present appellant succeeded Nirbha Ram as mahant and consequently the decree obtained against Nirbhe Ram can be executed against the present appellant. This argument proceeds on a fallacy. Nirbhe Ram was nto sued in his capacity as mahant and the person legally in managed and in charge of Ramdwara. If that was the capacity in which he was sued, it would have been wholly unnecessary to make him representative under Order I, Rule 8 Civil Procedure Code, the entire sect, as a matter of fact, a reading of the plaint in the suit will make it clear that the plaintiff in the suit did nto even admit that Nirbhe Ram was legally entitled to manage the property. thereforee, so long as the suit had nto been filed and the decree had nto been obtained against Nirbhe Ram in his capacity as mahant entitled to manage the property, the fact that the present appellant succeeded Nirbhe Ram as mahant is wholly irrelevant for his liability to be proceeded against in execution.

(5) The learned counsel for the respondent futher contended that the present objection was nto taken by the appellant in the court below. For one thing, no objection had been taken that without bringing the present appellant on records a legal representative of the original judgment debtor, the execution could nto be had against the appellant. Apart from this, the point being one of pure questions of law, without requiring any investigation into any disputed question of fact and one going to the vary reto of the matter, it can be argued in the Execution application and I permit the appellant to urge this point.

(6) For the reasons, I am of the view that execution application filed against the present appellant is nto maintainable. Accordingly I allow this Execution appeal and dismiss the execution application filed by the present respondent herein. The parties will bear their respective costs.


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