- (1.) Though this case has a chequered history, the issue involved in the present petition is very small. The petitioners, who are the original judgment-debtors, have filed the present petition under Article 227 of the Constitution of India challenging the order dated 22.12.2010 passed by the learned District Judge, Ajmer (hereinafter referred to as the Executing Court) in Civil Execution Petition No. 8/2010 (11/1991).
(2.) The facts in nut shell giving rise to the present petition are that a final decree dated 29.1.1940 (original decree dated 3.5.33) passed by the Court of Additional District Judge, Ajmer Merwara in the suit being no. 9/29 filed by Shri Dewan Syed Ale Rasool Ali Khan Sajjadanashin Hazrat Khwaja Moinuddin Hassan Chishti, was sought to be executed by filing an Execution Petition, by the present respondent no.1 Shaikhul Mashaikh Dewan Syed Zainul Abedin Ali Khan S/o Shaikhul Mashaikh Dewan Syed Ilmuddin Ali Khan claiming to be Sajjadanashin, Khwaja Moinuddin Chisti Saheb. In the said execution petition, the office of the executing court had raised certain objections and the matter was put up before the Executing Court. The Executing Court vide its order dated 5.10.2002 partly allowed the objections by holding that though the execution petition with regard to the declaration was barred by limitation, the same was maintainable so far as the decree of injunction was concerned. The said order was challenged by way of revision before this Court by the decree-holder and this court vide order dated 10.4.2006 had disposed of the said revision petition. It appears that the present petitioners thereafter again raised the objections before the executing court as regards the maintainability of the execution petition and also raised the ground of limitation. However, the executing court vide its order dated 10.8.2010 dismissed the said objections of the petitioners by observing that the High Court had already set-aside the earlier order passed by the executing court with regard to the issue of limitation, and that whether the person, who was executing the decree i.e. the present respondent no.1 was entitled to execute the same or not, or whether he was successor of the Dewan i.e. original decree-holder or not, was a matter of evidence. It futher appears that the respondent no.1 thereafter submitted an application under Order XL of CPC for the appointment of receiver. In reply to the said application, the petitioners submitted an application on 26.11.2010 requesting the court to record the evidence first with regard to the right of so-called decree-holder i.e. the respondent no.1 to execute the decree. The Executing Court heard the learned Advocates for the parties and vide its order dated 22.12.2010 dismissed by the said application of the petitioners by holding that the respondent no.1 had already been accepted as the Sajjadanashin as per the decision of the Hon'ble Apex Court, and it was not open for the Executing Court to again decide the said issue. Being aggrieved by the said order dated 22.12.2010, the petitioners have preferred the present petition.
(3.) It has been vehemently submitted by Mr. Ranjan, learned Sr. Counsel for the petitioners that the Executing Court could not have reviewed its previous order dated 10.8.2010 and passed the impugned order without any evidence having been recorded whether the respondent no.1 was entitled to execute the decree in question or not. According to learned counsel Mr. Ranjan, except the copy of the judgment of Hon'ble Supreme Court, there was no material on record to hold that respondent no.1 was entitled to proceed further with the execution petition. Placing reliance on the decision in case of Arjun Singh Versus Mohindra Kumar and others, 1964 AIR(SC) 993 and in case of Satyadhyan Ghosal and others Versus Smt. Deorajin Debi and another, 1960 AIR(SC) 941, the learned counsel has submitted that the principle of res-judicata would apply between the two stages in the same litigation and the party could not be permitted to re-agitate the matter again at the subsequent stage of the same proceedings. According to him, once the executing court had held in the order dated 10.8.2010 that the issue whether the respondent no.1 had any locus-standi to prosecute further with the execution petition or not was a matter of evidence, the executing court could not have reviewed its own order for holding that the respondent no.1 was entitled to, in absence of any evidence having been recorded by the court. The learned counsel further submitted that in none of the judgments of Hon'ble Supreme Court or of this Court, it was held that the respondent no.1 was Sajjadanashin and hence a detailed enquiry was required to be conducted by the executing court for holding that the respondent no.1 was Sajjadanashin and entitled to execute the decree passed in favour of the original decree holder. He also submitted that the decree in question was passed as back in 1933 and the Dargah Khawaja Saheb Act of 1955 (36 of 1955) (here-in-after referred to as the DKS Act) having come into force subsequently, the provisions of the said Act would not be applicable to the facts of the present case. According to him, the office of Sajjadanashin or Dewan attached to Dargah was a hereditary office and the successor to the said office was governed by the Rule of Primogeniture and that there was nothing on record to suggest that the respondent no.1 was the Sajjadanashin and was the eldest son of Ilmuddin entitled to inherit the said office of Sajjadanashin.;