Parakkat Devaswom Trustee, K.P. Veeraraghava Aiyar and Others vs Venkatachellam Vadhyar and Others

Wallace, J.—The question in this appeal is whether the execution petition is barred by time. The decree sought to be executed is the final

decree in O.S. No. 36 of 1912 on a hypothecation bond executed by certain persons. The bond was executed by them as trustees or owners of a

certain devaswom. At the time that suit was pending, another suit, O.S. No. 12 of 1912, to declare that the trust was a public trust and to remove

the above persons was going on. On 9th July, 1914, a decree to remove them was passed. The final decree in O. S. No. 36 of 1912, the

hypothecation decree against the property, was passed on 30th September, 1914. Three execution petitions were put in to execute this final

decree. The first was put in on 20th July, 1915, and was dismissed, because batta was not paid. The second was put in on 26th June, 1918, and

was rejected for the same reason. The third was put in on 20th June, 1921, and is the execution petition now under appeal.

The appellants are the present trustees who were put into office in the place of the original judgment-debtors by force of the decree in O.S. No.

12 of 1912 at some time which is not known. They contend in'' limine that the decree in O.S. No. 36 of 1912 now under execution was not

against the trust property at all; but I am not prepared to accept this contention for the decree clearly is, in the first instance, against the trust

property. It is further contended that the decree is a nullity, it being pointed out that the decree removing the original trustees was passed some two

months before the final decree against them. But it is clear that this contention cannot arise unless the respondents show that the judgment-debtors

in O.S. No. 36 of 1912 had been, as a matter of fact, removed, in consequence of the decree in O.S. No. 12 of 1912, some time prior to the final

decree in O.S. No. 36 of 1912 and that some other trustees or Receiver had been appointed in their place who could have been brought on the

record as the legal representatives of the original trustees before the final decree was passed. This fact the appellants have not attempted to show.

It is a question of fact which ought to have been heard and decided by the first Court; and in the absence of any evidence to prove that fact it

cannot be reasonably contended that the decree in O.S. No. 36 of 1912 is a nullity.

The next contention is based on very much the same argument. Appellants contend that the execution petition, dated 20th July, 1915, was not in

accordance with law, because the proper judgment-debtors were not on record in that petition because as that petition was put in against the

judgment-debtors named in the decree a year or so after the decree for their removal had been passed. It is said that a Receiver was appointed in

O.S. No. 12 of 1912 on 16th February, 1915, some five months before the date of the first execution petition; but again, the appellants have; not

attempted to show that this Receiver took charge or that the trustees, who were the original judgment-debtors, were actually ousted by him from

the property prior to the date of this first execution petition.

The Lower Appellate Court accepts the view that the original judgment-debtors were not the proper party-respondents to the execution petition

because they had been dismissed by the decree in O.S. No. 12 of 1912 on the 9th July, 1914; but it is nevertheless held that the execution petition

was in accordance with law. I do not agree with the Lower Appellate Court in its view that the removal of the original trustees came into operation

from the date of the decree and not from the date, whatever date it be, on which the trustees were removed from actual possession. So long as

they were not removed and they remained in control of the property it cannot be contended that they were not proper judgment-debtors to be on

record in the execution petition. Suppose, for example, that no Receiver or new trustee was appointed for some months after the passing of the

decree in O.S. No. 12 of 1912. It could not be held that there was no judgment-debtor at all against whom any execution petition could be

brought and that therefore no execution petition could be brought during that period. The crucial date on which the trustees cease to be actual

judgment-debtors is that on which they were ousted from the control of the trust property. What that date is does not appear. It is clear that the

duty of the appellants was to establish that date and they have not chosen to do so. It cannot, therefore,be concluded that on the date of the

execution petition of 1915 the original trustees were not the proper judgment-debtors. Therefore there is no proof that this execution petition was

not against the proper judgment-debtors.

Even if it were against the wrong judgment-debtors, it would not be invalid as a step-in-aid so long as the executing decree-holders bona fide

believed that they were still the proper judgment-debtors. According to law, so far as laid down in this Presidency, a bona fide application to

execute a decree against a particular judgment-debtor is in accordance with law even though it is subsequently discovered that the judgment-

debtor was dead at the time of the application. See Samia Pillai v. Chockalinga Chettiar ILR (1893) M 76. An unreported case of this Court,

C.M.A. No. 185 of 1902, has been brought to my notice which takes an opposite view. But in such cases the proper course is to follow the

reported decision. The same principle has been laid down in Balkishen Das v. Bedmati Koer ILR (1892) C 388, where it was held that an

application made against persons who were not the legal representatives of the deceased judgment-debtor was valid if the decree-holder bona fide

believed that they were the legal representatives. See also Ramaswami Chettiar v. Oppilamani Chetti ILR (1909) M. 6. The High Court of

Allahabad takes a different view which this High Court so far has not accepted see Gyanendra Nath Basu v. Rani Nihalo Bibi ILR 32 (1910) A

404; but compare with this Muhammad Husain v. Inayat Husain ILR (1914) A. 482.

Now as the application of 1915 was put in against the judgment-debtors named in the decree the executing Court, in the absence of evidence to

the contrary, could not but decide that the execution petition was in accordance with law. It is not its business to go outside the decree and enquire

whether the judgment-debtors named in that decree were still the proper judgment-debtors in 1915. The presumption is that the execution petition

was in accordance with law, and it was admitted as such by the Court and notice issued thereon. The parties who now wish to contend that it was

not were bound to prove it; and for that purpose they must first establish that the judgment-debtors named in the decree were no longer the real

judgment-debtors. That, as noted, they have not attempted to do. Unless and until they prove that fact, if was not the business of the decree-

holders to prove that they nevertheless bona fide believed that the judgment-debtors named in the decree were still really the judgment-debtors. It

is not, therefore, open to the appellants who have not established the fact necessary to throw on the decree-holders the onus of proving their bona

fide to put forward now any contention that the execution petition of 1915 was not bona fide.

A further contention has been put forward that the decree under execution was a fraudulent decree come to by collusion between the mortgagee

and the original trustees. But obviously that objection cannot be taken in execution. The real judgment-debtor is the trust; and the representative of

the trust cannot attack it in execution proceedings. If they want to set aside the decree they must institute appropriate proceedings.

I am, therefore, of the opinion that the order of the District Judge is right and dismiss this appeal with costs of respondents 1 and 2.