Deoki Singh and Others vs Sri Thakur Raghavindra bhagwan

Wort, J.—This rule, directed against the order of the Munsif dated 18th July 1938, arises out of a claim case. I propose to deal at once with one of the points taken, that point being that the Munsif had no jurisdiction to hear the case as the sale had already been held. Whatever may have been the view of this Court held in Puhupdei Kuar v. Ramcharitar Barhi AIR (1924) Pat. 76 I am quite clearly of the opinion that the present amendment is an answer to that contention. An application under Order 21 Rule 58 may be filed and owing to congestion of business may not be heard till after the sale has been held although it has not been confirmed; but it seems to me to be idle to suggest that the mere accident of the circumstances to which I have referred would shut out a claimant for ever from getting his property released from attachment.

I say no more as regards that. The real [point of substance is as regards the liability of the present respondent to this application. The present respondent is the shebait of the idol. He came forward in a claim case asking for the release of the idol''s property which had been taken in execution by the petitioner. The Judge in the Court below proceeded to decide whether judgment in that case out of which the execution arose, had been made against the idol or against the shebait; and, shortly stated, he came to the conclusion that it had been entered against the shebait personally. I take a very strict view of my revisional powers and. have consistently, held the view that even although a Judge has decided a question of fact or law erroneously, it gives me no jurisdiction to disturb his judgment or order. But neither that view nor the view expressed by their Lordships of the Judicial Committee with regard to this matter ties my hands when I find that the order made by the Judge is one which is entirely and absolutely unjustifiable. It seems to me that his order in this case is almost perverse.

In the first place the Judge discussed whether Sri Mahanth Basudeb Brahmachari Swami chela Sri Mahant Rajendra Dhari Swami, Manager Sri Thakur Raghavindra Bhagwan Jeo, etc. was the proper and apt title by which the deity or the idol could be sued or whether it was an apt title for a claim against the shebait in his personal capacity. There may be some justification in the Judge saying that there is some room for doubt, but certainly there is no justification for the Judge saying that if the deity had been described first the matter would have been concluded. The mere accident of whose name appears first cannot possibly determine a matter of this gravity. It is the description taken as a whole which must determine the matter. The deity might have been sued by giving the name of the idol sued through so and so, or reversing the order so and so as shebait of the deity, either of which descriptions would have complied with the rules and would have aptly described an action I against the idol. But leaving that for a moment and assuming that the Judge was right in saying that there was some ambiguity, he proceeds to consider the documents in the case for the purpose of determining whether the deity was sued or the shebait was sued in his personal capacity.

I describe his judgment as almost perverse because of the various expressions which the learned Judge has made when he comes to consider the point which I have stated. Now, it must be stated that the decree out of which the execution arose was in an undefended suit whether the defendant had put in a written statement or not is immaterial; the suit was undefended. Looking at the decree the Judge found that he got no more help from it than he got from the description which he describes as ambiguous, so he was forced back to consider the plaint, it be remembered that there was no judgment and it was an ex parte decree.

The first thing that is noticed that the person sued is described as trustee to Sri Thakur so and so; then in parse. 2 of the plaint he says the defendant as trustee to the estate of Sri Thakur Ragho Gobind Bhagawan Jeo aforesaid borrowed Rs. 1100 for the necessity of paying rents, also for meeting other valid and necessary expenses with regard to Sri Thakur Jeo aforesaid. Whatever justification or lack of justification there might have been for the decree, it is impossible to suggest that the action'' was not brought against the idol and that circumstances were alleged which were irrelevant for the purpose of charging the idol and not the shebait in his personal capacity for the debt which was claimed. I have nothing to do with whether the decree had been obtained by fraud or whether there was justification for it; those questions do not arise; so long as the decree stood, it had to be accepted. There is one other matter. Assuming that the present decree-holder was forced to bring an action contemplated by Order 21, Rule 63 by reason of this order the question there to be determined was not whether the claimant had any right to the property; that matter has already been decided, there can be no doubt about it; the point to be determined would be the justification in the circumstances of the case for the decree which was the basis of the execution. That is not what is contemplated by Order 21, Rules 58 and 63, and in my judgment the decree-holder should not be forced to try out the suit in which he has already obtained a decree.

One other point was mentioned by Mr. Sarju Prasad appearing on behalf of the respondent and that was that at the time that the debt had been incurred, i.e. the debt of Rs. 1100, the shebait against whom judgment was obtained had ceased to be the shebait of the idol. That was a proper defence in the action which was not advanced certainly not supported by any evidence and not by the fact. It may be, I do not decide the point, that the present shebait as representing the deity may have some right of action. That again has nothing to do with this Court in this matter. It is an extraordinary case but I have no hesitation in the circumstances to come to the conclusion that the order of the Munsif should be set aside and this rule made absolute with costs hearing fee two gold mohurs.