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of <h1>Appeal successful: Orders overturned, execution dismissed due to legal defects. No costs awarded.</h1> <h3>Kishore Joo Versus Guman Behari Joo Deo</h3> The appeal was allowed, setting aside the orders of the lower appellate court and the execution court, ultimately resulting in the dismissal of the ... - Issues Involved:1. Validity of the suit filed by the Collector as Administrator.2. Execution of the decree by the trustees after the creation of the trust.3. Authority of the District Magistrate as President of the Trust to execute the decree.4. Application of the principles of constructive res judicata.5. Amendment of the execution application and its implications on limitation.Issue-wise Detailed Analysis:1. Validity of the Suit Filed by the Collector as Administrator:The judgment-debtor argued that the decree was a nullity because the suit had been instituted by the Collector, Hamirpur cum Administrator of the Idol, instead of the Maharaja of Charkhari, who was the Shebait. The court noted that it is settled law that normally only the Shebait can file a suit on behalf of the Idol, but in exceptional circumstances, others can institute a suit. The court referred to the case of Behari Lal v. Thakur Radha Ballabh Ji, which established that when a Shebait is negligent or the guilty party, others interested in the endowment can file suits. The court presumed that the Collector of Hamirpur had taken over the management of the idol and its properties in his capacity as Administrator after the merger of Charkhari in U.P. Thus, the objection was not open to the judgment-debtor in the execution application, and the Collector was functioning as the de facto manager, allowing him to bring the suit.2. Execution of the Decree by the Trustees After the Creation of the Trust:The judgment-debtor contended that after the creation of the trust, the decree could only be executed by the trustees, not by the District Magistrate in his capacity as Chairman of the Trust. The court found this argument to have considerable force, noting that the trust deed did not authorize the President alone to institute legal proceedings. According to the Indian Trusts Act, where there are multiple trustees, all must join in the execution of the trust unless the instrument of trust provides otherwise. Since no such provision existed, the decree could not be executed based on the application filed solely by the District Magistrate.3. Authority of the District Magistrate as President of the Trust to Execute the Decree:The court examined whether the District Magistrate, as President of the Trust, had the authority to execute the decree. It was found that the execution application was filed by the District Magistrate in his capacity as President of the Trust, but without the authorization of the trust deed to institute legal proceedings alone. Therefore, all trustees should have joined in the execution application. The court also noted that the Indian Trusts Act principles apply to public trusts, and all trustees must join in the execution unless the trust deed provides otherwise.4. Application of the Principles of Constructive Res Judicata:The execution court had dismissed the judgment-debtor's objections, holding them barred by the principle of constructive res judicata because similar objections had been dismissed in default previously. The court found this view incorrect, referring to the Full Bench decision in Genda Lal v. Hazari Lal, which established that if an objection is dismissed for default and the application does not become fructuous, the judgment-debtor is not barred from raising the issue again. Since the previous objection had been dismissed in default, the principles of constructive res judicata did not apply.5. Amendment of the Execution Application and Its Implications on Limitation:The lower appellate court had directed amendments to the execution application to reflect the formation of the trust and the names of the trustees and Chairman. The judgment-debtor argued that this amendment, ordered after the limitation period had expired, defeated his vested rights. The court referred to the Supreme Court judgments in L. J. Leach and Co. Ltd. v. Jardine Skinner and Co. and Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, which held that amendments should not be allowed if they take away a legal right accrued by lapse of time unless special circumstances justify it. The court found no special circumstances justifying the amendment and noted that the respondents did not take timely steps to rectify the defects. Therefore, the amendment was wrongly allowed.Conclusion:The appeal was allowed, the orders of the lower appellate court and the execution court were set aside, and the execution application was dismissed. The court found that the defects in the execution application rendered it not maintainable in law and rejected the application of Section 99, C.P.C., which pertains to non-material errors. No order as to costs was made due to the special circumstances of the case.
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