Gopal Krishan Vyas, J. - (1.) Heard learned Counsel for the parties.
(2.) Initially, a suit was filed by Mahant Kamlesh Ramsnehi in the Court of Civil Judge, Jodhpur for cancellation of sale-deed executed by Haridas in favour of defendant petitioner, Seshkaran. Late Kamlesh Ramsnehi was Mahant of Ramdwara known as 'Mahant Khimiyadasji ka Ramdwara' and he was nominated mahant in place of Mahant Mohan Ram. Ex parte decree was passed in the suit against petitioner Seshkaran. In pursuance thereof, Mahant Kamlesh Ramsnehi initiated execution proceedings for execution of the ex parte decree. Notice under Order 21, Rule 22, Civil Procedure Code was issued and, during the course of execution proceedings, Mahant Kamlesh Ramsnehi died as a result of which application was filed by his widow Smt. Rekha, daughter of Monu through natural guardian mother. Smt. Rekha was Smt. Chunni, mother of Mahant late Kamlesh Ramsnehi for bringing them on record as legal heirs of late plaintiff Mahant Kamlesh Ramsnehi. A reply was filed to the application by petitioner Seshkaran and, after considering objections, vide order dated 27.08.1994, they were taken on record as legal heirs of late Kamlesh Ramsnehi. Thereafter, in the execution proceedings the objection raised by the petitioners under Section 47 read with Section 151 of the Civil Procedure Code were decided vide order dated 03.09.1994 and the objections filed under Section 47, Civil Procedure Code. were rejected. Against that order, the present revision petition has been filed challenging order passed by the learned Civil Judge (Sr. Dn.) Jodhpur in Execution Case No. 9/90, dated 03.09.1994.
(3.) It is stated by the petitioners that the original suit was filed by Kamlesh Ramsnehi being Mahant of the Ramdwara and it is stated in the plaint that he was nominated Mahant of the Khimiyadasji Ramdwara in place of Mahant Mohan Ram who had illegally contracted marriage, therefore, after the death of Kamlesh Ramsnehi his legal heirs viz., wife, daughter and mother cannot be substituted as decree-holder and they cannot execute the decree passed in favour of a Mahant of the Ramdwara. It is contended that his objection petition under Section 47, Civil Procedure Code has been dismissed by the executing Court which is illegal because the decree was passed in favour of Mahant late Kamlesh Ramsnehi as it was a decree in his capacity as Mahant of the Ramdwara and not a decree in his personal and private capacity. Further, it is contended that the representatives have no right to execute the decree and no valid discharge can be given by them to the petitioners for satisfying the decree. The successor of a Mahant can only be a Mahant and, therefore, the learned executing Court has committed grave error in dismissing the objections filed by the petitioners. It is also contended that the learned executing Court has committed grave error and irregularity in reaching the conclusion that the question of executability of the decree cannot be raised at the time of execution of the decree. It is also contended by learned Counsel for the petitioner that the legal heirs of the Mahant have no right to execute the decree passed in favour of Mahant unless and until another Mahant is appointed or in a capacity of a Mahant only. It is also contended that because in the plaint itself it was contended by Kamlesh Ramsnehi that he was nominated Mahant because Mahant Mohan Ram had illegally contracted marriage and as such he was nominated Mahant in place of Mohan Ram. Learned Counsel for the petitioner relied upon judgments rendered by the Supreme Court in the cases of M.P. Shreevastava v. Mrs. Veena, AIR 1967 Supreme Court 1193 , Dhurandhar Prasad Singh v. Jai Prakash University & Others, (2001)6 SCC 534 and B.V. Patankar & Others v. C.G. Sastry, AIR 1961 Supreme Court 272.;