DEOKI SINGH Vs. SRI THAKUR RAGHAVINDRA BHAGWAN THROUGH MAHANT SATRUGHAN CHARI

JUDGEMENT

(1.) This rule, directed against the order of the Munsif dated 18 July 1938, arises out of a claim case. I propose to deal at once with one of the points taken, that point being that the Munsif had no jurisdiction to hear the case as the sale had already been held. Whatever may have been the view of this Court held in Puhupdei Kuar V/s. Ramcharitar Barhi A.I.R. (1924) Pat. 76, I am quite clearly of the opinion that the present amendment is an answer to that contention. An application under Order 21 Rule 58 may be filed and owing to congestion of business may not be heard till after the sale has been held although it has not been confirmed; but it seems to me to be idle to suggest that the mere accident of the circumstances to which I have referred would shut out a claimant for ever from getting his property released from attachment.

(2.) I say no more as regards that. The real [point of substance is as regards the liability of the present respondent to this application. The present respondent is the shebait of the idol. He came forward in a claim case asking for the release of the idol's property which had been taken in execution by the petitioner. The Judge in the Court below proceeded to decide whether judgment in that case out of which the execution arose, had been made against the idol or against the shebait; and, shortly stated, he came to the conclusion that it had been entered against the shebait personally. I take a very strict view of my revisional powers and. have consistently, held the view that even although a Judge has decided a question of fact or law erroneously, it gives me no jurisdiction to disturb his judgment or order. But neither that view nor the view expressed by their Lordships of the Judicial Committee with regard to this matter ties my hands when I find that the order made by the Judge is one which is entirely and absolutely unjustifiable. It seems to me that his order in this case is almost perverse.

(3.) In the first place the Judge discussed whether Sri Mahanth Basudeb Brahmachari Swami chela Sri Mahant Rajendra Dhari Swami, Manager Sri Thakur Raghavindra Bhagwan Jeo, etc. was the proper and apt title by which the deity or the idol could be sued or whether it was an apt title for a claim against the shebait in his personal capacity. There may be some justification in the Judge saying that there is some room for doubt, but certainly there is no justification for the Judge saying that if the deity had been described first the matter would have been concluded. The mere accident of whose name appears first cannot possibly determine a matter of this gravity. It is the description taken as a whole which must determine the matter. The deity might have been sued by giving the name of the idol sued through so and so, or reversing the order so and so as shebait of the deity, either of which descriptions would have complied with the rules and would have aptly described an action I against the idol. But leaving that for a moment and assuming that the Judge was right in saying that there was some ambiguity, he proceeds to consider the documents in the case for the purpose of determining whether the deity was sued or the shebait was sued in his personal capacity.