Calcutta High Court
Pannalal Paik vs Sm. Indu Bala Halder on 3 April, 1987
Equivalent citations: AIR1988CAL323, AIR 1988 CALCUTTA 323, (1988) 2 CURCC 339 (1987) 1 CAL HN 416, (1987) 1 CAL HN 416
JUDGMENT Sukumar Chakravarty, J.
1. This appeal is directed against the judgment and order dt. Dec. 3, 1982, passed by Shri S.R. Bhowmik the learned Additional District Judge, 10th Court, Alipore in the Miscellaneous Appeal No. 672 of 1981, confirming the order Dt. Nov. 14, 1981, passed by Shri A. C. Acharya, Subordinate Judge, 9th Court, Alipore in Miscellaneous Case No. 28 of 1979 under Order 21 Rule 58 of the Civil Procedure Code.
2. In pursuance of the decree of dismissal of Title Suit No. 47 of 1972 instituted by the deity, Shri Radhakrishna Jew Thakur represented by the Sebait Indubala Halder as the plaintiff against Pannalal Paik as the principal defendant and others as the pro forma defendants, with costs against the principal defendant and without costs against the rest, the decree of costs obtained by the principal defendant was put into execution in Title Execution Case No. 28 of 1978 seeking to realise the decretal costs by attachment and sale of the personal property of Indubala Halder who, however, filed the aforesaid Miscellaneous Case No. 28 of 1979 under Order 21 Rule 58 of the C. P. C. claiming the release of her personal properties from attachment, on the allegation that the deity represented by the Sebait Indubala Halder was directed to pay the costs of the suit under the decree and not Indubala Halder in her personal capacity and that accordingly, the personal properties of Indubala Halder cannot be attached and sold to satisfy the decretal costs."
3. The executing court accepted the contention of Indubala Halder and accordingly allowed the Miscellaneous Case and released the personal properties of Indubala Halder from attachment.
4. On appeal, the first Appellate Court confirmed the order of the Executing court.
5. Being aggrieved, this second Miscellaneous appeal has been filed by the decree-holder principal defendant as the appellant.
6. The short but important question of law as agitated in this appeal is whether in view of the decree as it stands, the decretal costs are liable to be realised from the personal property of Indubala Halder or from the estate of the Deity itself.
7. Mr. Bhattacharya, appearing for the appellant, has submitted that in the absence of any direction in the decree that the costs are payable from the estate of the deity, the respondent Sebait Indubala Halder is personally liable for such costs and that the decree-holder appellant is entitled to realise the decretal costs by attachment and sale of the personal properties of the said sebait. Mr. Bhattacharya in support of his such submission has relied on the decisions in AIR 1949 Mad 789, (1934) 67 Mad LI 209 : (AIR 1934 Mad 430), (1934) 67 Mad LJ 787 : (AIR 1935 Mad 5) and AIR 1941 Cal 272. Mr. Bhattacharya has further submitted that the courts below have misappreciated the scope of the decisions in (1915) ILR 42 Cal 440 : (AIR 1915 Cal 327) and (1904) 14 Mad U 377 as referred to by them and consequently has committed wrong by ignoring the decision in (1935) ILR 58 Mad 160 which has been followed in AIR 1949 Mad 789.
8. Mr. Banerjee, appearing for the respondent has submitted that the decree as it stands, is clear to say that the plaintiff deity represented by the Sebait Indubala Halder is to pay the costs of the suit and that accordingly the property of the deity alone can be attached and sold for satisfaction of the decretal cost and not the personal property of Indubala Halder and that the courts below have rightly followed the decision in (1915) ILR 42 Cal 440 : (AIR 1915 Cal 327) and (1904) 14 Mad LJ 377 in this respect.
9. Mr. Banerjee further submits that the decisions as referred to by Mr. Bhattacharya relate to the trustee and trust property and that accordingly the said decisions have got no scope of their application in the instant case which relates to Sebait and deity's property. Mr. Banerjee has further submitted that Mr. Bhattacharya wants the courts to read into the decree which is not stated therein.
10. There is no dispute to the fact and the execution petition and the certified copy of the decree attached therewith establish that the title suit brought by the deity represented by Sebait Indubala Halder against the principal defendant and other pro forma defendants was dismissed with costs against the principal defendant and without costs against the rest and that the plaintiff was directed to pay the decretal costs to the principal defendant. It is also an undisputed fact that no direction in the decree was given by the court which passed the said decree, to the effect that the costs of the suit as decreed shall be realised from the estate of the deity.
11. In the case of Upendra Nath Kalamuri v. Kusum Kumari Dasi reported in (1915) ILR 42 Cal 440 : (AIR 1915 Cal 327), the question as posed in the instant appeal was not for consideration. In the aforesaid case, Kusum Kumari Dasi obtained a decree for money against one Gobardhan Kalamuri described as the sebait of Goddesses Lakshmi and Bhagavati to whom certain properties were dedicated by a deed. The decree-holder applied for execution of the decree by sale of certain properties ot the deities. The substituted heirs of sebait Gobardhan Katamuri, in their personal capacities took the objection by, filing a petition that the properties sought to be attached and sold were not the debuttar properties but the personal properties of the objectors. The courts below found that the properties in question were debuttar properties and accordingly the execution case was allowed to proceed. On appeal, their Lordships in the aforesaid case held that the appeal before the first appellate court was incompetent as the objection did not fall under Section 47 of the C. P. C. but under Order 21 Rules 58 and 60 of the C. P. C. which was not appealable under the Code prevailing at that time and accordingly did not express any opinion on the merits of such objection. In the aforesaid case, Mukherji, J. no doubt observed, "But when a decree has been passed against a person in his capacity as sebait, execution can be taken out only against the properties of the endowment in his hands". It appears that such observation was made keeping in mind the decree obtained by a person for his money-claim against the deity, but not the decree of costs alone obtained by a person against the deity represented by the Sebait as in the instant case. The same view as observed in (1915) ILR 42 Cal 440 : (AIR 1915 Cal 327) was also adumbrated in the case of Venkatasmi Pillai v. Kuppayee Ammal and Ors. reported in (1904) 14 Mad LJ 377 based on almost similar facts. The decisions in (1915) ILR 42 Cal 440 : (AIR 1915 Cal 327) and (1904) 14 Mad LJ 377 not answering the question as posed in the present case, therefore cannot be relied on for coming to a decision on such question.
12. In the case of A. Rangaswamy Iyer v. Madura Urban Co-operative Bank Ltd. reported in AIR 1949 Mad 789, the plaintiff suing as trustee incurred liability for costs by the order of the court. It has been held by Mack J. presiding over the single Bench by following the decision in (19351 ILR 58 Mad 160 : (AIR 1934 Mad 430) as referred to by the court below in the impugned judgment that unless the court orders in the decree that the costs should come out of the estate or trust funds, a person suing as trustee and incurring liability for costs is personally liable for such costs.
13. In the case of V. S. Munuswami Mudaliar, Trustee v. Kendaswami Pillai reported in (1934) 67 Mad LJ 787 : (AIR 1935 Mad 5) based on similar facts as in AIR 1949 Mad 789, the same principle was enunciated.
14. Mr. Banerji has submitted that the principle of law as enunciated in the decisions in AIR 1949 Mad 789 and (1934) 67 Mad LJ 787 : (AIR 1935 Mad 5) relating to trustee and trust property cannot be made applicable in the present case which relates to deity represented by Sebait and endowment property. It is true that the Trust Act in its terms does not apply to religious trust involving the religious endowment. It is also true that the Provisions of the Civil Procedure Code relating to suits by minors do not in terms apply to the deity. The principle of law however as enunciated in the cases dealing, with trust property and minor's property for protection of the trust estate and minor's estate against the onslaught upon such estate pursuant to the decree of costs obtained by a person against the trustee or guardian of the minor, can be made applicable for the protection of the deity's estate also in relation to a decree of costs obtained by a person against the deity represented by the Sebait. We get support in this respect from the decision in the case of Vasa Panchakshari (dead) v. Manan Venkataratnam reported in (1934) 67 Mad LJ 209 : (AIR 1934 Mad 430) and also from the decision in the case of Shri Shridhar Jew v. Manindra Kumar Mitter and others reported in AIR 1941 Cal 272.
15. On perusal of the aforesaid decisions, it appears that the High Courts at Calcutta and Madras keeping in view the English rules regarding the liability of the trustee in his personal capacity to satisfy the decree of costs passed against him, in suits as a trustee, have observed that the Dharma Karta. or Sebait of the deity in respective cases mentioned above shall be personally liable to satisfy the decretal costs unless there is a direction in the decree that decretal costs shall be payable from the estate of the deity.
16. In the case reported in AIR 1941 Cal 272, it has been held that where a suit by an idol's next friend is dismissed, the next friend is personally liable for the costs unless in view of all the facts of the case the court directs him to be indemnified out of the trust estate. While holding so in the said case in the original side of this High Court, his Lordship kept in mind the Sub-rule (2) of Rule 63 of the Appellate Side Rules of the High Court at Calcutta which runs as follows : --
"In drawing up decrees of this court dismissing with costs appeals by minors, the bench Clerks should be careful to make the next friend of the minor liable for such costs, unless the court otherwise orders."
17. It appears that Amir Ali J. in the aforesaid original side case reported in AIR 1941 Cal 272, has applied the principle underlying the Rule 63(2) of the Appellate Side Rules dealing with the liability of the payment of costs arising out of the dismissal of appeals by minors to the original side suit filed by the next friend of the deity in relation to the liability of the payment of the costs arising out of the dismissal of the suit. So the same principle may be applied by the courts subordinate to the High Court in the similar circumstances of the suits before them.
18. In view of what has been discussed above the submissions of Mr. Banerji are found to be not sustainable.
19. In the result, the appeal is allowed and the orders of the courts below are set aside and the Misc. Case No. 28 of 1979 under Order 21 Rule 58 of the C.P.C. is dismissed.
20. We make no order as to costs in the appeal as also in the Misc. Case itself.
21. Let the records be sent down immediately along with the copy of the judgment.
Gobinda Chandra Chatterjee, J.
22. I agree.