Decided on July 11,1969

UMEDI BHAI Appellant


B.Dayal C. J. - (1.) THIS petition under Article 226 of the Constitution has been filed by a decree-holder who obtained a decree against one Goswami Ratanprabha alias Bhanuprabha. The decree was transferred for execution to Bhopal and there certain properties were attached in execution. Two persons Laxminarayan and Purushottam filed a regular suit No. 19-A of 1961 for a declaration and injunction that the properties belonged to a public trust and could not be sold in execution of the decree. That suit was ultimately dismissed on technical grounds and nothing more need be said about it. The respondent No. 3 Babulal then filed an application under section 4 of the M. P. Public Trusts Act, 1951, for registration of the public trust. The present petitioner - decree holder contested those proceedings on various grounds which need not be mentioned here. Those proceedings were entrusted by the Collector who was the Registrar under the Act to a Sub-Divisional Officer for enquiry. Apparently, the order was passed under section 34 of the said Act. THIS order was passed on 28th August 1962. Thereafter, an application was made by Babulal, respondent No. 3, before the Collector and Registrar of Public Trusts for an injunction restraining the decree-holder from executing his decree by sale of the properties in question. By order dated 2nd March 1963 the Collector exercising his inherent powers ordered that the present applicant will not take any further steps in the execution of his decree against the property. A notice was also given to the applicant to show cause why the interim injunction should not be made absolute. THIS order was passed ex parte.
(2.) THE present writ petition has been filed against both these orders. With regard to the order of transfer it is contended that the Collector had no power to pass that order under the Act. We do not agree. Section 34 of the Act reads as follows : "Where in any case an enquiry is to be made by the Registrar under this Act, he may himself make the enquiry or may forward the case for investigation and report to any revenue officer not below the rank of a Deputy Collector." THE Collector, therefore, had authority under this section to send the case for enquiry and report to the Sub-Divisional Officer. Moreover, under section 34-A, which came into force in 1964, the Registrar is further authorised to delegate all or any of his powers and duties under this Act to any revenue officer of his district not below the rank of a Sub-Divisional Officer. In this case the enquiry has been referred to a Sub-Divisional Officer and, therefore, at least now after the passing of this section it will become a mere technicality to quash the order of the Registrar when he can pass a fresh order under section 34-A for the same purpose. It was further contended that the objection raised by the applicant before the Registrar was that the person who had made an application under section 4 of the Act was not entitled to make that application and that, therefore, unless the Collector decided that matter, he could not delegate his powers to the Sub-Divisional Officer. We are unable to agree with this contention. In the first place, the question whether the applicant before the Registrar was entitled to make the application or not itself needed investigation and was a question within the jurisdiction of the Registrar to decide, and there is no reason why this investigation itself could not be entrusted to the Sub-Divisional Officer. Moreover, under section 5 of the Act the Registrar could suo motu start proceedings for registration of a public trust and if after the enquiry the Registrar comes to the conclusion that the applicant was not entitled to make the application under section 4 but that the facts were such that the Registrar would suo motu proceed to register the public trust, he would be entitled to do so. Therefore, the mere objection that the person who had made the application purporting to be under section 4 was not entitled to file the same does not take away the jurisdiction of the Registrar to proceed with the enquiry and to order registration, if necessary. We, therefore, see no reason to interfere at this stage and to set aside the order of the Registrar transferring the investigation to the Sub-Divisional Officer. With regard to the injunction order, we are of opinion that the Registrar had no inherent power to issue an injunction against the decree-holder not to execute his decree. The proceedings under the Act before the Registrar are not judicial proceedings. The Act does not confer any power upon the Registrar to issue injunctions to any person. The provisions of the Code of Civil Procedure have not been applied to the proceedings before the Registrar except to the extent provided under section 28 of the Act and these matters relate only to proof of affidavits, summoning and attendance of persons, compelling the production of documents and issue of commissions. This restricted application of the Code of Civil Procedure necessarily implies that the power to issue injunctions is not vested in the Registrar. The Registrar not being a Court, he cannot exercise inherent powers under section 151 of the Code of Civil Procedure or otherwise. We are, therefore, of opinion that the Registrar was not right in issuing the injunction order dated the 2nd March 1963 which we hereby quash.
(3.) IT was contended on behalf of the respondent that the subject-matter of the dispute required to be protected and should not be sold away before the matter of registration is decided. That question can be decided by the executing Court on a proper application being made by any of the interested parties. IT is for the executing Court to see whether it is proper to stay its hands at a particular stage of execution. IT is not for the Registrar to direct the decree-holder not to execute his decree. We accordingly partly allow this petition as stated above. Parties will bear their own costs of this petition. The outstanding amount of the security deposit shall be refunded to the petitioners. Petition partly allowed.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.