Brij Lal and Others vs Raj Kumar and Others

Shamsher Bahadur, J.—This is a rule directed against the order of the Senior Subordinate Judge, Ambala, dismissing the application of the Petitioners u/s 92, read with Section 151 of the Code of Civil Procedure.

A preliminary decree was passed by the Senior Subordinate Judge, Ambala, on 6th of November, 1941, in a suit brought by Pt. Hari Chand Brahmin, against Ruli Chand and Nand Lal Aggarwal. The suit was concerned with the management of a Dharamshala in Jagadhari. It appears that in the suit which was brought under the provisions of Section 92 of the Code of Civil Procedure, a compromise was reached between the representatives of the two communities and the preliminary decree removed the existing trustees and in their, stead one Gaur Brahmin and one Vaish were to be appointed as trustees of each community for the future. Pt. Piare Lal, President Gaur Brahmin Sabha, Jagadhari and L. Gokal Chand, Municipal Commissioner, Jagadhari, were appointed trustees "for the present". Though it was stated in the preliminary decree that one Gaur Brahmin and one Vaish "may be appointed trustees of each community for the future" no machinery was provided for their appointment. In a subsequent suit, also u/s 92 of the Code of Civil Procedure, both Pt. Piare Lal, the representative of the Gaur Brahmins and Gokal Chand, representative of the Vaish community, were removed and in their stead Pt. Nand Kishore, for the Brahmins and Raj Kumar for the Vaishas, were appointed on 3rd November, 1955. Thereafter. Pt. Nand Kishore, tendered his resignation and he was replaced by Pt. Radha Kishan, who continued to work along with Raj Kumar. On Raj Kumar''s death in July, 1964, an application was moved by Brij Lal, Jai Parkash, Mangal Sain and Balbir Parkash who described themselves as beneficiaries of the trust, under Sections 92 and 151 of the CPC to appoint a Vaish member in pursuance of the scheme which had been sanctioned by the preliminary decree of 6th of November, 1941. Holding that the Court could not act in execution of the preliminary decree the application was dismissed and the Petitioners have come in revision to this Court.

The counsel for the Respondents has placed reliance on a Division Bench judgment of the Madras High Court (Burn and Lakshmana Rao, JJ.), in V.E.N.K.R.M.A. Ramanathan Chettiar Hukdar of Nagappa Chettiar Kattalai in the Sri Meenakshi Sundareswarar devasthanam Vs. The Madura Sri Meenakshi Sundareswarar Devasthanam, , where it was held that "in a scheme suit u/s 92, when once a decree settling a scheme has been passed, the Court has done its duty and is not to be called upon in the execution department to make the scheme work". It seems to me that though the scheme had settled the appointment of one member of Gaur Brahmins and one of the Vaish community to be the trustees of the temple, no machinery had been provided for their appointment. In case of vacancy, how can the Court be called upon to fill a lacuna which has been left in the scheme? It is significant that the Petitioners themselves in a subsequent suit had moved the Court for filling a vacancy. In the present instance, however, resort has been taken to have the desired object by way of execution. This in my opinion, cannot be done. Though there are some authorities which go to show that in some cases, a scheme can be enforced, Mr. Aggarwal, says that he would be satisfied if a direction is given to the Court concerned to treat this application as a suit u/s 92.

I would accordingly remand these proceedings to the trial Judge with the direction that he should proceed with the application as if it were a suit under the provisions of Section 92 of the Code of Civil Procedure. The Petitioners of course would be called upon to pay the requisite court-fee and fulfil the other requirements of Section 92. The counsel have been directed to cause their clients to appear before the Senior Subordinate Judge, Ambala, on 23rd May, 1966. The costs would be borne by the parties.