Trust execution and representation rules: all trustees must join, and a substantive defect cannot usually be cured after limitation.
A deity may be represented by a de facto manager where the regular shebait is unavailable or unable to act, so the suit instituted by the Collector on behalf of the idol was upheld. By contrast, an execution application filed only by the Chairman of a public trust, without joinder of all trustees and without authority in the trust deed, was treated as invalid because all trustees must ordinarily act together. The defect was substantive and could not ordinarily be cured by amendment after limitation had expired, absent special circumstances. An earlier objection dismissed for default did not amount to a decision on merits, so constructive res judicata did not bar the later objections.
Issues: (i) whether the Collector, acting as de facto manager of the idol, could validly institute the suit on behalf of the deity; (ii) whether the execution application filed only by the Chairman of the public trust, without joinder of all trustees, was maintainable; (iii) whether the execution application could be amended after expiry of limitation to cure the defect in representation; and (iv) whether the earlier dismissal of objections in default barred the present objections by constructive res judicata.
Issue (i): whether the Collector, acting as de facto manager of the idol, could validly institute the suit on behalf of the deity.
Analysis: A deity is a juristic person and, where the regular shebait is unavailable, negligent, or unable to act, a de facto manager may protect the deity's interests. The record showed that the Collector had been administering the temple after the merger of the territory, and the appellant could not successfully challenge that position in execution. In such exceptional circumstances, institution of the suit by the de facto manager was permissible.
Conclusion: The challenge to the validity of the original suit failed.
Issue (ii): whether the execution application filed only by the Chairman of the public trust, without joinder of all trustees, was maintainable.
Analysis: Under the general principle reflected in the law of trusts, where there are several trustees, all must join in the execution of the trust unless the instrument of trust provides otherwise. The trust deed here did not authorise the Chairman alone to initiate legal proceedings or execute the decree on behalf of the trust. Since the execution application was filed only in the capacity of President of the Trust, it was not a valid application by the trustees as a body. The principles underlying Sections 47 and 48 of the Indian Trusts Act, 1882 supported this conclusion, even though the Act does not apply proprio vigore to public trusts.
Conclusion: The execution application was not maintainable in the form in which it was filed.
Issue (iii): whether the execution application could be amended after expiry of limitation to cure the defect in representation.
Analysis: The defect was substantive, not merely formal, because the application on its face was filed by a person not shown to be authorised to represent the decree-holder trust. Once limitation for a fresh execution application had expired, amendment could not ordinarily be allowed to take away the accrued right of the judgment-debtor, especially in the absence of special circumstances justifying such relief. The failure to proceed under Order 21 Rule 16 of the Code of Civil Procedure, 1908 also remained uncured.
Conclusion: The amendment ought not to have been allowed.
Issue (iv): whether the earlier dismissal of objections in default barred the present objections by constructive res judicata.
Analysis: An objection dismissed for default does not, by itself, amount to an adjudication on the merits. Where the prior objection was not decided on merits and the execution had not become fructuous on that basis, the doctrine of constructive res judicata did not apply. The execution court therefore erred in treating the present objections as barred.
Conclusion: The objections were not barred by constructive res judicata.
Final Conclusion: The execution proceeding could not be sustained because the application was not properly constituted, the attempted amendment after limitation was impermissible, and the objections were maintainable; the appellant succeeded and the execution failed.
Ratio Decidendi: Where a trust has more than one trustee, all trustees must join in an execution application unless the trust instrument authorises a different course, and a substantive defect in such representation cannot ordinarily be cured by amendment after limitation has expired in the absence of special circumstances.
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