HAR KISHAN DAS Vs. GOSHAIN PARSHOTAMNAND GIR

JUDGEMENT

(1.) This is an execution first appeal against an order passed by the learned Additional Subordinate Judge of Benares dated 8 August 1931. The order purports to be one under Order 21, Rule 40, Civil P.C., but I have no hesitation in saying that it is a most unsatisfactory order under that provision. The facts are that the appellants before me were the defendants in a suit brought by the respondent to the present appeal. The respondent alleged in his plaint that he should be declared the lawful mahant of certain math properties inasmuch as one Mayanand Giri, the defendant, bad forfeited his rights to the gaddi of the said math. In that suit certain other defendants were impleaded on the ground that they were transferees from Mayanand Giri of the trust property. The trial Court held that Mayanand Giri had forfeited his rights to the property for various reasons and that the plaintiff was entitled to be declared a mahant of the property. As regards the defendants-transferees it came to the conclusion that the majority of them were transferees of certain personal properties of Mayanand Giri to which the plaintiff could not lay any claim. Some of such transferees are the appellants before me. The operative portion of the judgment as well as the decree of the first Court runs as follows: The rest of the defendants will have their legal costs against the plaintiff. Every set of defendants will have separate set of costs.

(2.) I have got to interpret the above order. On the side of the plaintiff it is contended that the costs cannot be realised personally from him but that the successful defendants should look to the trust property for the realisation of their costs. It As an elementary principle that a Court executing a decree cannot go behind the express terms of the decree and if it is called upon to construe the decree it has to do so according to the plain meaning of the words of the decree. When the words are clear enough an executing Court cannot attribute some other meaning to them unless it has to do so in virtue of any enactment or rule having the force of law applicable to the particular case before it. To my mind in the present case the words are clear enough and according to their meaning the decree is executable against the plaintiff in any manner in which a decree for money may be executed against any ordinary litigant who is directed to pay costs.

(3.) It is however contended that the plaintiff brought a suit as a trustee of the math and he did not in any way try to benefit himself by the suit which he brought. According to the finding of the trial Court, it is clear that the plaintiff was careless in impleading the appellants before me as defendants to the suit inasmuch as the finding of the Court below is that these defendants are not transferees of any trust property but are transferees of the personal property of Mayanand Giri. In suits between strangers on the one hand, trustees on the other the trustee is on no better footing than any ordinary plaintiff or defendant, for the circumstances of the trust cannot be allowed to affect the interest of a third person : see Lewin's Law of Trusts, p. 1265.