DEWAN SYED ALI RASUL ALI KHAN, SAJADA NASHIN KHWAJA MOINUDDIN CHISTI SAHEB THROUGH UTTRADHIKARI Vs. ALTAF HUSSAIN AND OTHERS

JUDGEMENT

(1.) This revision petition has been preferred against the order dated 23.2.1993 (impugned) passed by the then District Judge, Ajmer in Civil Execution No. 11/1991 in respect of execution of decree dated 3.5.1933 passed in Civil Suit No. 9/1929 obtained by the petitioner decree holder against the non-petitioners-judgment debtor-defendants. The said suit was filed by the father of the petitioner Dewan Syed Ali Rasul Ali Khan for the relief of permanent perpetual injunction in respect of determination of the rights of Dewan as regards the offerings made by the pilgrims of the Dargaha Sharif, Ajmer of Khawaja Moinuddin Chisti Sahab as regards entitlement of the petitioner to receive offerings made to the holy shrine and in respect of its division in equal shares between the Dewan and Khadims of the Dargah Sharif. The Additional District Judge of the erstwhile State of Ajmer-Merwara had decreed the plaintiffs' suit for grant of permanent-perpetual injunction and the decree was drawn up vide order dated 3.5.1933. In the meanwhile, the Khadims who were entrusted with the responsibility of taking care of the offerings made by the pilgrims of the holy shrine had started disbursement of the said offerings in fair proportion of 50 per cent each to the then Dewan of the said shrine and thereafter to the petitioner w.e.f. 1975 to 1991. The petitioner had obviously not taken steps for execution of the decree dated 3.5.1933 earlier since compliance of the said order/decree was being done by the non-petitioners-Judgment-debtors for the period 1975 to 1991 and the dispute arose thereafter between the parties as on 17.8.1991 when the execution application was presented before the trial Court by the petitioner. In view of the dispute having arisen between the parties as regards the distribution of offerings in terms of the decree dated 3.5.1933 to the extent of 50% of petitioner's share in the offerings as Diwan of Holy Shrine before the learned District Judge, Ajmer on 16/17.8.1991 for due execution of the decree in accordance with law. The question which cropped up for discussion before the learned District Judge, Ajmer was as to whether the District Judge Ajmer was competent enough to execute the decree particularly when the impugned-decree was passed by the Additional District Judge, of the erstwhile State of Ajmer-Merwara and on merger of the said State with the State of Rajasthan, whether the jurisdiction did not automatically stood vested with the District Judge, Ajmer being successor in office of the erstwhile Merwar-Ajmer State.

(2.) In the Execution Petition, it was specifically stated that the petitioner-decree holder is the present Sajada Nashin since 1975 and after the death of his father Late Shri Dewan Syed Ilamuddin Ali Khan II Sajada Nashin Hazrat Khawaja Sahib by virtue of being son and successor is competent to execute the aforesaid decree passed in Civil Suit No. 9/1929 vide which it was adjudicated that Sajada Nashin is entitled for 50% of offerings being made by the pilgrims at the holy Dargah Sharif of Khawaja Sahib and he will be competent to give contract for disbursement of the same amongst the persons authorised and competent to receive the same in accordance with the terms of Decree. Since the dispute arose as regards the offerings after the Urs of 1991, the earlier understanding and consent between the parties could not continue and, therefore, the petitioner had given a contract after inviting tenders in accordance with law to Shri Arif Ali Khan son of Shri Mohammed Ajar Khan and Shri Wahid Mohammed Khan son of Shri Zafar Mohammed Khan both residents of Ajmer accepting their tenders but when obstruction was created by the Judgment-debtors even in the entrance of Dargah of the aforesaid Contractors and in recovery of the amount of offerings, ultimately it was the petitioner who had to suffer and hence he moved the execution application for execution of the decree. It was also prayed therein that a Receiver may also be appointed for collecting, recovering, managing and distributing the amount of offerings during the pendency of execution application, but in view of the obstruction created by the Judgment-debtors-non-petitioners, the execution of the decree has not seen light of the day till date. In the aforesaid Execution Petition dated 17.8.1991, the petitioner had also sought the relief from the Executing Court for appointment of a Receiver who may be duly authorised for collecting, recovering, managing and fair distribution of the amount of offerings made by the pilgrims visiting the holy Dargah Sharif at Ajmer from time to time. It is pertinent to mention in this context that along with aforesaid execution petition simultaneously another execution application dated 16/17.8.1991 was also moved by the decree-holder i.e. the present petitioner that in the event of Executing Court's entertaining any reasonable doubt regarding competence of the said Court as regards its jurisdiction to adjudicate and decide the said application, it may be sent to the equivalent and competent Court of ADJ No. 1 or ADJ No. 2, Ajmer for its effective and final adjudication in accordance with law. The respondents-judgment debtors were duly noticed by the Executing Court and their objections were also invited as regards the maintainability of the execution application by the Executing Court. This fact is borne out from the perusal of order-sheets that the matter was fixed and shown from time to time on 14.1.1992, 22.1.1992, 7.2.1992,18.4.1992, 24.4.1992,13.5.1992, 20.5.1992, 29.5.1992, 18.7.1992, 29.7.1992, 13.9.1992, 26.9.1992 & 17.10.1992 but the matter could not be heard and finally decided. On 22.10.1992 instead of pouncing the order for which the matter was fixed, the order-sheet was drawn up by the Executing Court to the effect that since the aforesaid application dated 16/17.8.1991 could not be disposed of and is pending adjudication as such, the said application was fixed for orders on 29.10.1992. Even on the said date no final order could be passed by the learned Presiding Officer and the matter was again adjourned for 20.2.1993 when the arguments were heard by the Executing Court and the matter was again fixed for pronouncement of orders on 23.2.1993. On the said date the impugned-order was pronounced and the execution application itself was dismissed without passing any order on the application dated 17.8.1991 against which, the present revision petition has been preferred before this Court.

(3.) I have heard learned counsel of the parties at length and examined the relevant record and the legal position on the subject. Prima facie, I am of the considered view that there was no necessity or justification for the District Judge, Ajmer to have observed in the impugned-order that it has no competence or jurisdiction to decide the execution proceedings arising out of the impugned-decree in view of the provisions of Order 21 Rules 5 & 6 of the Code of Civil Procedure, 1908, which stipulates, as under :