INDER SEN ISRANI, J. - (1.) THIS revision petition has been filed by the petitioner objector against the order dated 25. 3. 83 passed by the learned Additional District Judge, Gangapur City in Civil Misc. case No. 14/78.
(2.) A suit was filed bearing No. 10/53 in the court of District Judge, Bharatpur in representative capacity on behalf of general public under section 92 CPC for removal of old trustees and appointment of new trustees with a prayer that directions be given to the old trustees to handover the possession of the trust- property to the newly appointed trustees. Inter-alia, it was also prayed hat gift of trust property made in favour of Durga Devi be declared null and void. This suit was dismissed by the District Judge, Bharatpur. On appeal by the plaintiffs to the High Court, the judgment of the learned District Judge was reversed and appeal was allowed vide its judgment and decree dated 16. 12. 1967. (Mangi Lal Vs. Smt. Durga Devi (1) : In para 25, while allowing the appeal it was directed by this court that "the impugned judgment and decree are set-aside and Suraj Narain defendant No. 3 and Sunderlal defendant No. 4 are removed as trustees. It is ordered that the entire suit property shall vest in a trustee to be appointed by the District Judge and the defendants are directed to deliver the property to the trustee so appointed, the gift-deed Ex. 18 is declared to be void and illegal and shall not effect the trust property". The special appeal filed by the defendants was dismissed by this court on 25. 1. 1972. The plaintiffs filed an application for execution before the District Judge, Bharatpur and an application for appointment of trustees was also filed as directed by this court. The District Judge, Bharatpur transferred the execution application to the court of Additional District Judge, Gangapur City who vide its order dated 12. 2. 1969 appointed the non-petitioners No. 1 to 6 as trustees of the trust property, who later on filed the execution application for possession of the trust property. The obstruction was created by the petitioner, therefore, the trustees filed an application under O. 21 Rule 97 C. P. C. The objections raised by the objectors including the petitioner were rejected, thereupon the objectors filed a revision petition bearing No. 41/81 before this court, which was also dismissed on 25. 9. 81. However, while rejecting the revision petition, this court permitted the objectors to raise the question regarding excitability of the execution application on the ground that the decree is not of possession. There upon, the objectors raised various objections before the executing court and the executing court vide its order dated 4. 12. 1982 rejected the preliminary objections of the petitioner. The petitioner filed a revision petition bearing No. 659/82 before this court, which was also dismissed on 14. 12. 1982 at the admission stage. However, while dismissing the revision petition, this court directed the executing court to deciding all objections of the objectors and the petitioner was also allowed to raise her all objections before the executing court. It is urged by the learned counsel for the petitioner that under these circumstances the petitioner through an application dt. 16. 12. 1982 raised certain objections before the executing court, which were rejected on 25. 3. 83. Hence this revision petition. The contention of Mr. Kejriwal, learned counsel for the petitioner is four-fold. His first-objection is that the trustees were not appointed by the District Judge as directed by this court vide its judgment and decree dated 16. 12. 1967, but were appointed by the Addl. District Judge who had no jurisdiction to do so. Merely because the execution application was transferred by the District Judge to Additional District Judge, he could not assume jurisdiction and appoint new trustees. The second objection raised by the learned counsel is that no decree for possession was granted by this court vide its judgment dated 16. 12. 1967 and therefore no order for handing over possession of the trust property can be given by the executing court. It is urged by the learned counsel that the decree is more or less for mandatory injunction. His third objection is that the Commissioner Devasthan is a necessary party to the proceedings has the property is the trust property as per the provisions of section 44 of the Rajasthan Public Trust Act, 1959 (hereinafter referred to as the Act ). It is further submitted that the decree passed by this court is in contravention of the provisions of section 44 of the Act and, therefore, cannot be executed. His last objection is that unless the trust is registered under section 29 of the Act no suit or any other proceedings can be filed by the trust and therefore, the proceedings hould be kept pending till the trust is registered. In this respect reliance has been placed on Jagannath Vs. Satya Narain, (2) in which it was held that a suit by 'shebaits' to recover articles of Seva-pooja is a suit to enforce a right and cannot be maintained unless the trust is registered. In the case of Vishambher Dayal Vs. Ram Chandra (3), it was held by this court that if the court comes to a conclusion that the trust is required to be registered under the Trust Act, it should not dismiss the suit but grant an opportunity to get the trust registered. It is submitted that admittedly, the trust has to be registered as even the executing court has given direction to the trustees to get the same registered, but it has not yet been done. Learned counsel Shri I. S. Rastogi, appearing on behalf of the non-petitioners-trustees, has urged that on 13. 8. 1968 an application was filed by the 8 persons to the District Judge, Bharatpur to appoint them as trustees and on 19. 10. 1968 the District Judge transferred this application along with the execution application under section 10 of the Rajasthan Civil Court Ordinance for disposal of the same in accordance with law. According to the learned counsel, the Additional Distt. Judge as per sub-sec- (3) of section 10 of the Rajasthan Civil Court Ordinance shall discharge any of the functions of District Judge, which the District Judge may assign to him and in the discharge of those functions he shall exercise the same powers as the District Judge. It is therefore, submitted that no illegality has been committed by the learned Additional District Judge in appointing the new trustees and he was fully authorised to do so and his order is well within his jurisdiction. Reliance is placed on Smt. Veena Lodha Vs. Narendra Mal Lodha (4) in which the competency of the Addl. District Judge regarding exercise of Powers of District Judge in a case transferred to the Additional District Judge, was considered. This was a case in which a petition under the Hindu Marriage Act, which was filed in the court of District Judge, was transferred to the Additional District Judge by the District Judge. It was held by this court that the Additional District Judge can exercise all powers of District Judge in such petitions under the Hindu Marriage Act. The same view was taken in AIR 1972 Raj. 260 Learned counsel further contends that from a bare perusal of the operating portion in para No. 26 of the judgment of this case in Mangi Lal Vs. Smt. Durga Devi (Supra) it is evident that this court had directed that possession of the trust property be handed over to the new trustees. It is further- pointed out by the learned counsel while dealing with the objection No. 3 that in the objections dated 16. 12. 1982 filed by the petitioner in the execution proceedings filed under Order 29 Rule 97 C. P. C. no such objection has been raised that the decree passed by this court is against the provisions of section 44 of the act. It is also pointed out that no such objection was raised even in the suit which was decided in December, 1967 i. e. Mangilal's case (supra) and even in the appeal filed against he above judgment no objection was raised. It is pointed out that the suit was filed in 1953 and the Act came into force in the year 1959, but no such objection was raised earlier as stated above during the pendency of the suit and both the appeals. It is also pointed out that a similar objection was raised by the petitioner on 15. 9. 82, which was rejected by the executing court on 4. 12. 1982. Against this order a revision petition was filed bearing No. 659/82, in this court which was dismissed by this court at the admission stage. It is, therefore, urged that the petitioner cannot against raise a similar objection in fresh revision petition filed by her. The contention of the learned counsel regarding 4th objection raised by the petitioner regarding the provisions of section 29 (2) of the Act to the execution proceedings, is that the executing court had already given direction to the trustees to get the trust registered and necessary steps in this direction have already een taken. It is pointed out that in the case of Jagannath (supra) and Vishambher Dayal (supra) such an objection was also raised at the time of suit itself, whereas this objection has now been raised several years after, during the execution proceedings when even the appeal filed before the Division Bench of this court was dismissed in the year 1972. Reliance has been placed on the authority of Kanwar Nirmal Chand Soni & Irs. vs. Thakurji Saligramji Maharaj. (5), in which it was held that the provision of sec. 29 of the Act apply only to hearing and. decision of a suit, this bar does not apply in case where preliminary decree has already been passed in a mortgage suit and only final decree proceedings are pending. I have heard learned counsel for both the parties and have also gone through the judgment of the executing court as also other documents on the file. It is clear from the provisions of section 10 of the Civil Court Ordinance that when the business pending before any District Judge or the Distt. Judge so requires for its speedy disposal the State Government may appoint as number of Additional District Judges as may be necessary and they while discharging any functions of DJ. in the work which may be assigned to them by the District Judge shall exercise same powers as are exercised by the District Judge. In the case of Mangilal (supra) this court directed that the entire suit property shall vest in a trustee to be appointed by the District Judge. This direction was given to the District Judge and when the District Judge transferred the execution proceedings to the Additional District Judge under sec. 10 of the Raj. Civil Court Ordinance, the Additional District Judge was fully empowered to exercise the same powers as the District Judge under the direction given by this court. Even a plain reading of para 26 of the Judgment given in the case of Mangi Lal (supra) will make it clear that the decree has been given for delivery of possession and question of any order or judgment passed in the nature of mandatory injunction as urged by the learned counsel for the. petitioner, does not arise. Regarding joining of Commissioner, Devasthan as necessary party, it is clear from the discussion made above that no such objection was raised even by those who were parties to the original litigation, which ended only in dismissal of second civil appeal filed in this court. In sub-clause (2) of sec. 44 of the Act it is clearly mentioned that "if on the date of the application of this Act to any public trust, any legal proceedings in respect of such trust are pending before any civil court of competent jurisdiction to which the Advocate General or the Collector exercising powers of the Advocate General is a party, the Devasthan Commissioner shall be deemed to be substituted in those proceedings for the Advocate General or the Collector, as the case may be and such proceedings shall be disposed of by such court". It is, therefore, clear from a bare perusal of the above provision that the Devasthan Commissioner shall be deemed to be substituted in such proceedings in place of Advocate General or the Collector, as the case may be. In this case suit was filed with the permission of Advocate General which has come to an end since long, the Advocate General was not a party to the proceedings and had only granted permission for filing of the suit as is pointed out by the learned counsel for the non-petitioner. Therefore, the learned trial court has rightly held that the Commissioner, Devasthan Department shall be deemed to have been substituted in place of Advocate General as per sub clause (2) of section 44 of the Act.
(3.) REGARDING 4th objection raised by the learned counsel for the petitioner, it is clear from the authority of Kanwar Nirmal Chand (supra) that this bar of sec. 29 shall apply only to the hearing and decision of the suit and not even at the stage when the final decree proceedings are pending. In this case he proceedings in the suit came to an end as early as in 1972, therefore, the provisions of sub-clause (2) of section 29 of the Act are not applicable to the proceedings pending in the executing court. In my opinion this petition has no force and is dismissed with costs, which is assessed at Rs. 500/ -. .;