SAROJANT DEVI Vs. GULAB CHAND

JUDGEMENT

(1.) THIS revision petition has been filed by the petitioner objector against the order dated 25. 3. 83 passed by the learned Additional District Judge, Gangapur City in Civil Misc. case No. 14/78.

(2.) A suit was filed bearing No. 10/53 in the court of District Judge, Bharatpur in representative capacity on behalf of general public under section 92 CPC for removal of old trustees and appointment of new trustees with a prayer that directions be given to the old trustees to handover the possession of the trust- property to the newly appointed trustees. Inter-alia, it was also prayed hat gift of trust property made in favour of Durga Devi be declared null and void. This suit was dismissed by the District Judge, Bharatpur. On appeal by the plaintiffs to the High Court, the judgment of the learned District Judge was reversed and appeal was allowed vide its judgment and decree dated 16. 12. 1967. (Mangi Lal Vs. Smt. Durga Devi (1) : In para 25, while allowing the appeal it was directed by this court that "the impugned judgment and decree are set-aside and Suraj Narain defendant No. 3 and Sunderlal defendant No. 4 are removed as trustees. It is ordered that the entire suit property shall vest in a trustee to be appointed by the District Judge and the defendants are directed to deliver the property to the trustee so appointed, the gift-deed Ex. 18 is declared to be void and illegal and shall not effect the trust property". The special appeal filed by the defendants was dismissed by this court on 25. 1. 1972. The plaintiffs filed an application for execution before the District Judge, Bharatpur and an application for appointment of trustees was also filed as directed by this court. The District Judge, Bharatpur transferred the execution application to the court of Additional District Judge, Gangapur City who vide its order dated 12. 2. 1969 appointed the non-petitioners No. 1 to 6 as trustees of the trust property, who later on filed the execution application for possession of the trust property. The obstruction was created by the petitioner, therefore, the trustees filed an application under O. 21 Rule 97 C. P. C. The objections raised by the objectors including the petitioner were rejected, thereupon the objectors filed a revision petition bearing No. 41/81 before this court, which was also dismissed on 25. 9. 81. However, while rejecting the revision petition, this court permitted the objectors to raise the question regarding excitability of the execution application on the ground that the decree is not of possession. There upon, the objectors raised various objections before the executing court and the executing court vide its order dated 4. 12. 1982 rejected the preliminary objections of the petitioner. The petitioner filed a revision petition bearing No. 659/82 before this court, which was also dismissed on 14. 12. 1982 at the admission stage. However, while dismissing the revision petition, this court directed the executing court to deciding all objections of the objectors and the petitioner was also allowed to raise her all objections before the executing court. It is urged by the learned counsel for the petitioner that under these circumstances the petitioner through an application dt. 16. 12. 1982 raised certain objections before the executing court, which were rejected on 25. 3. 83. Hence this revision petition.

(3.) REGARDING 4th objection raised by the learned counsel for the petitioner, it is clear from the authority of Kanwar Nirmal Chand (supra) that this bar of sec. 29 shall apply only to the hearing and decision of the suit and not even at the stage when the final decree proceedings are pending. In this case he proceedings in the suit came to an end as early as in 1972, therefore, the provisions of sub-clause (2) of section 29 of the Act are not applicable to the proceedings pending in the executing court.