Sunday, 17 March 2019

Whether application for execution of decree which is not signed by trustees of charitable trust is maintainable?

 It is also argued that the execution proceedings ought to have been signed by all the trustees and that the Secretary of the trust cannot represent the trust to file execution proceedings. In support of this contention reliance is placed on Section 47 of the Indian Trusts Act, 1882.

7. So far as the question as to who should sign the execution proceedings and who should verify the execution proceedings is concerned, the provisions of Order 21, Rule 11(2) of the Code of Civil Procedure, 1908 are most relevant. The relevant provision reads as under :

"Written application-- (2) Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars."
This provision clearly means that it is not necessary that every time only the decree holder must file execution proceedings. It can be filed by any other person who happens to be acquainted with the facts of the case and the Court happens to be satisfied that the person so signing the execution proceedings is acquainted with the facts of the case. Here, the Secretary of the trust has signed the execution proceedings and it is very clear from the order passed by the learned Judge of the Court of Small Causes that he has not raised any doubt about the acquaintance of the Secretary with the facts of the case. So to the satisfaction of the Judge of the Court of Small Causes, the execution proceedings is rightly presented.

8. No doubt, Section 47 of the Indian Trusts Act, 1882 prohibits the trusts from delegating the powers, but the explanation to Section 47 of the Indian Trusts Act, 1882 reads as follows :

"The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section."
It means that ministerial acts can be performed by a person who is authorized by the trustees to do the needful. Learned Counsel for the petitioners has argued that no such authorization is filed by the Secretary before the Court to show that he can sign the execution petition on behalf of the trust. However, when the Court was satisfied that the Secretary was acquainted with the facts of the case and could file proceedings, I do not think that there is any substance in this contention. 

IN THE HIGH COURT OF BOMBAY

Civil Writ Petn. No. 2285 of 1997

Decided On: 21.06.2001

 Monalisa Rohinton Irani  Vs. Naval H. Tata and Ors.

Hon'ble Judges/Coram:
V.K. Barde, J.




1. The facts leading to this writ petition are as follows :

The trustees of N.M. Petit Charity Fund filed Ejectment Application No. 155/E of 1967 in the Court of Small Causes at Bombay under Section 41 of the Presidency Small Cause Courts Act, 1947 against Mrs. Meherbai B. Irani for possession of the premises given on leave and licence. In the said proceedings, a settlement took place between the parties and consent terms were filed before the Court of Small Causes and an order in terms of the consent terms was finally passed in the said matter.
2. The relevant consent terms read as under :

"1. Ejectment Application allowed and the Respondent is ordered and decreed to handover quiet, vacant and peaceful possession of the Application premises to the Applicants.

2. However, on the Respondent regularly paying the licence fee and upon his giving an undertaking to the effect that he would not transfer, sub-let, under-let and/or in any way part with possession of the Application premises and further that he would abide by the terms and conditions enumerated by the Applicants, the execution of the aforesaid decree to be stayed.

3. The Respondent further agrees and undertakes that he would accept and shift to any other suitable alternate accommodation if the trustees desire him to do so in carrying out the larger interest of the trust.

3A. The deceased Respondent had deposited licence fees in Court. In view of the consent terms, the money lying deposited in Court may be allowed to be withdrawn by the Respondent 1A."

3. So, Rohinton B. Irani continued in possession of the premises. However, Rohinton B. Irani expired on 21-2-1996 and thereafter execution petition was filed on behalf of the trust before the Court of small Causes, being Miscellaneous Notice No. 214 of 1996 in Ejectment Application No. 155/ E of 1967. In the said proceedings, the present petitioner widow of Rohinton B. Irani raised objection with respect to maintainability of that execution proceedings. The main contention was that the execution petition was not signed by all the trustees of the trust and it was signed by the Secretary of the Trust-- Shri A.P. Master who had no authority to sign the execution petition. However, this contention of the present petitioners was turned down by the learned Judge of the Court of small Causes at Bombay. A revision application preferred against that order. The revision also came to be dismissed on 14-3-1997.

4. Learned Counsel for the petitioners has argued that because of the consent terms filed in the original Ejectment Application No. 155/E of 1967, a new licence was created in favour of Rohinton B. Irani and the present petitioner being widow of Shri Rohinton B. Irani, she has acquired all the rights under the licence created in favour of Shri Rohinton B. Irani. So Ejectment Application No. 155/E of 1967 is not maintainable.

5. It is also argued that the execution proceedings ought to have been signed by all the trustees and that the Secretary of the trust cannot represent the trust to file execution proceedings. In support of this contention reliance is placed on Section 47 of the Indian Trusts Act, 1882.

6. The consent terms clearly indicate that the trust had obtained a decree for ejectment against the original licensor. However, the execution of the decree was postponed because of the second term in the consent terms. It may be stated that because of the second term, Shri Rohinton B. Irani became a licensor. However, that does not mean that the right to execute the decree was wiped out. If there are circumstances giving rise to execute the decree in favour of the decree holder ,then on the basis of the consent terms, the execution petition can be filed and it would be maintainable.

7. So far as the question as to who should sign the execution proceedings and who should verify the execution proceedings is concerned, the provisions of Order 21, Rule 11(2) of the Code of Civil Procedure, 1908 are most relevant. The relevant provision reads as under :

"Written application-- (2) Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars."
This provision clearly means that it is not necessary that every time only the decree holder must file execution proceedings. It can be filed by any other person who happens to be acquainted with the facts of the case and the Court happens to be satisfied that the person so signing the execution proceedings is acquainted with the facts of the case. Here, the Secretary of the trust has signed the execution proceedings and it is very clear from the order passed by the learned Judge of the Court of Small Causes that he has not raised any doubt about the acquaintance of the Secretary with the facts of the case. So to the satisfaction of the Judge of the Court of Small Causes, the execution proceedings is rightly presented.

8. No doubt, Section 47 of the Indian Trusts Act, 1882 prohibits the trusts from delegating the powers, but the explanation to Section 47 of the Indian Trusts Act, 1882 reads as follows :

"The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section."
It means that ministerial acts can be performed by a person who is authorized by the trustees to do the needful. Learned Counsel for the petitioners has argued that no such authorization is filed by the Secretary before the Court to show that he can sign the execution petition on behalf of the trust. However, when the Court was satisfied that the Secretary was acquainted with the facts of the case and could file proceedings, I do not think that there is any substance in this contention. Actual authorization signed by all the trustees may not be there on record, but if the trust-deed provided such delegation of powers, then the Secretary can definitely file execution petition before the Court.

9. On reading the provisions of Section 47 of the Indian Trusts Act, 1882 and the provisions of Order 21, Rule 11(2) of the Code of Civil Procedure, 1908 together, it is very clear that the Court before which execution petition is filed has to satisfy itself with the authority of the person who has filed the execution petition. That has happened in this case and, therefore, no objection can be raised on this point.

10. Learned Counsel for the respondents has in this respect relied upon the ruling of a learned single Judge of this Court in the case of Lilavati v. Municipal Corporation, Bombay 66 Bom. L.R. 868, wherein it is observed that the signing of the execution petition is a ministerial act and that can be done by any person who is acquainted with the facts of the case. The same view is taken by another learned single Judge of this Court in the matter of Kopargaon Sahakari Society v. Deorao, MANU/MH/0173/1976 : AIR1976Bom333 , wherein it is held that it is not necessary that the decree-holder shall sign execution petition but that the Court should be satisfied that the person signing the execution petition was acquainted with the facts of the case. In view of this ruling, it is very clear that the execution petition presented by the Secretary of the trust is properly and legally presented before the Court. It is not necessary that all the trustees and decree-holders should sign the execution petition.

11. Hence the writ petition is dismissed and the rule discharged.


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