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.

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Whether sending partition decree to collector for partition of property is ministerial act not a judicial function?

 The question whether a decree passed under O. 20, R. 18( 1), CPC directing partition by the Collector can be said to be a preliminary decree and whether such an order can be termed as an application in an execution petition and any order under the said provision is barred by time.-- came up for consideration before the Division Bench of this Court for the first time in Narasu v. Narayan Krishnaji, AIR 1959 Mys, 233. Though the main contention in that case was the maintainability of the appeal as it is a ministerial order, the Division Bench had an occasion to thrash out all the controversies including the one which is now canvassed in this revision. That was also a case where after the High Court decree, the decree holders filed some application to the trial Court to take steps to partition the properties in question. The objection raised by the contesting respondents was whether the application in execution was tenable etc. Incidentally it was contended in that case that the application filed amounts to execution petition which is filed after limitation. It is in this context it is held by the Division Bench that the application cannot be considered in law as an execution petition - a decree passed under Rule 18(1) of Order 20 directing partition by the Collector cannot be said to be a preliminary decree. Sofar as the Civil Courts are concerned it is final for all purposes, though the partition of the property may remain to be effected by the Collector. Sub-rule (1) of R. 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector. It says that the Court "shall direct such partition or separation to be made by the Collector or any Gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of S. 54." It is further held that "any application filed before the Court which passed the decree to send the papers to the Collector could only be considered as a reminder to the Court to follow up its direction given under sub-rule (1) of R. 18. No period of limitation is provided for such a reminder as the same is not one contemplated by law. In sending the papers to the Collector, the Court is not performing any judicial function; nor is it required to pass any judicial order. Its function could at best be described as ministerial. It will be inappropriate to call such an application as an execution application. The Court which passed the decree must be deemed to have become functus officio after passing the decree."

IN THE HIGH COURT OF KARNATAKA

Civil Revision No. 4010/1996

Decided On: 05.02.1997

Appellants: Sanna Palaiah alias Palaiah 
Vs.
Respondent: Soncha Boraiah and another

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Whether Court Can Delegate Ministrial Function to its staff?

Whenever a judicial officer or a Tribunal is on leave or is not able to hold the court due to some reason, the Court Master/Reader has to entertain the litigants and give them next date of hearing. This function of the Court Master/Reader is a lawful function being performed by an official of the court under the authority of the judge/Tribunal. This function is a ministerial function. The Court Master/Reader who gives dates to the litigants, in fact tells the litigants that they have to appear on the next date of hearing. The Court Master/Reader commits no wrong if he tells the litigant that on next date of hearing the matter will be taken up for the same cause for which the case was fixed on the date when the judicial officer was absent. Such an order is a perfectly lawful order. Neither the Court Master/Reader commits any illegality by telling the litigants that the previous order passed by the court, if has not been complied with, should be complied with. The purpose of Civil Procedure Code is not to harass the litigants but to see that the court is managed in a proper and effective manner and proceedings are done as per law. It is not in the interest of the litigants or justice that the Court Master/Reader fixes all the cases for proper order since the judge was absent. If he has authority to adjourn the case and give next date of hearing, he has authority to fix the case for the same purpose for which the case was fixed on the date when the judge was absent. Fixing cases for proper order means wastage of crucial time of the court on next date when the court has to take all those cases again and pass an order as to for what purpose the case would be taken up on subsequent date of  hearing. An unscrupulous litigant can take benefit of such routine order of fixing cases for proper order and stop appearing on the ground that there were no directions of the court to appear and the court should has summoned him de novo. The court can delegate ministerial functions to its staff and these functions are routinely delegated. The summons of cases sent to various parties are not signed by the judge personally but are signed by the ministerial staff under the authority of the judge although summons sent to a party are the directions issued by the judge for appearance in the court on a particular date for discharging a particular function.

5. I, therefore, consider that when a Court Master/Reader, in case of Tribunal/judicial officer not holding the court passes an order directing parties to appear on a particular date and fixes the case for the same function which was to be discharged on that day and tells the parties to comply with the order passed by the court on previous hearing, he does no illegal act nor such an order can be considered as an illegal order or unauthorized order. 
DELHI HIGH COURT

M/S. New India Assurance Co. Ltd vs Shri Preet Pal Singh & Ors 

Dated:Decided On: 02.07.2010
Mac. Appeal No. 159 of 2007

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