1993 PLP 1666 (MLD)

(1) That Ephrahim Joseph the original trustee was not to be substituted by his sister because there is no question of his being inherited by any body. (2) That appointment of Rachal Joseph as trustee was nullity in law because she was not the beneficiary and it was not a private trust and section 74 was not attracted. (3) That section 10 of Religious and Endownments Act, 1863 was a bar to the appointment of Rachal Joseph as a trustee. (4) That for a public charitable trust permission of the Advocate‑General under section 92 of C.P.C. was necessary, before a trustee was appointed to such trust. (5) That section 47(3) of C.P.C. entitles the execution Court to determine a question whether any person is or is not a representative of a party. (6) That the execution was already completed and there could be no fresh execution. In support learned counsel for the appellant cited the cases of: (i) Inland Steam Navigation Workers Union AIR 1936 Cal. 57; (ii) Wadero Shahbaz Khan Wadcro Fateh Khan v. Kakalmal Budhumal and another AIR 1940 Sindh 230; (iii) Shankar Hari Deshpande and another v. Damodar Vyankoji Kulkarni AIR 1942 Bom. 29; (iv) Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283; (v) Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1905 SC 690; (vi) Ali Muhammad v. Hussain Bux and others PLD 1976 SC 37; (vii) Qazi Muhammad Rafiq and others v. Qazi Feroz Bakhat and others 1984 SCMR 1570. Mr. Nazirullah Khan, learned counsel for the respondent, argued that there was difference between a public trust and a private trust and such difference had been discussed in the case of Umesh Chandra Banik and other v. Rai Shaheb Abinash Chandra Bhattacherjee PLD 1968 Dacca

124. Learned counsel for the respondent next referred to section 14 of the Religious Endowments Act, 1863 which entitled any person or persons interested in any mosque, temple or religious establishment to sue before the Civil Court the trustee, the Manager or the Superintendent of such establishment, for any misfeasance, breach of trust or neglect of duty committed by such trustee, Manager, Superintendent or member of such committee in respect of the trust vested in or confided to them respectively. Reference was also made to section 15 of said Act which shows that the interest required in order to entitle a person to sue under section 14 of said Act need not be a pecuniary or a direct or immediate interest or such an interest as would entitle the person suing to take any part in the management or superintendence of the Trust. Learned counsel also placed reliance on the case of Sindh Provincial Co‑operative Wholesale Society Ltd. v. Abdu Weavers Co‑operative Society and others PLD 1960 Kar. 946 where it was held by a D.B. of this Court that in cases where there are patent reasons for doubting the jurisdiction of the Court that passed the decree namely a decree which will be void on account of total lack of jurisdiction, the executing Court is competent to hold an enquiry to decide that a decree is a nullity and incapable of execution, but if the question of want of jurisdiction is to be decided with reference to the existence or non‑existence of a particular set of circumstances or facts, the decree cannot be impeached in collateral proceedings because the judgment, though erroneous, will not be void and it will not be a case of a decree which in all eventualities is a nullity. Mr. A.G. Shaikh, Advocate also representing the respondent, made certain submissions in respect of Bani Israil Trust which was created in 1922 when there were thousands of Jews at Karachi. He argued that situation had changed in 1987 when Rachal Joseph moved for being appointed as trustee because some body had to look after the Trust. In respect of appellant Anwar Ahmed Khan, it was argued that he being a Muslim could not be appointed as trustee of Bani Israil Trust and as such he had no locus standi to challenge appointment of Rachal Joseph as a trustee. Regarding any reference to any provision of the Religious Endowments Act, 1863, it may be pointed out that said Act has been repealed by the Ordinance NOXXVI of 1981. Even otherwise section 10 of said Act could not have stood in way of Rachal Joseph for being appointed as a trustee of the said Trust. In respect of powers of the execution Court, there is no cavil with the observations made in the cases of Wadero Shahbaz Khan Wadero Fateh Khan v. Kakalmal Budhumal and another AIR 1940 Sindh 230 and Shankar Hari Deshpande and another v. Damodar Vyankoji Kulkarni AIR 1942 Born. 29 that one of the questions to be determined by the execution Court is, as, to whether any person is or is not representative of a party. In the case of Wadero Shahbaz Khan Wadero Fateh Khan AIR 1940 Sindh 230 it was held that in the case of an execution application by one of the joint decree‑holders if express authority of the executing decree‑holder to receive the decretal amount on behalf of till joint decree‑holders is proved or if it is established that in fact all decree- holders have received their shares of the amount then an adjustment binding all decree holders can and should be recorded. In the present case there was no money decree. Moreover the suit was initially filed by Ephrahim Joseph not in his personal capacity but as trustee of the trust property and in Suit No. it1()2 of 1980 he sought declaration in respect of an agreement dated 9‑3‑1978 which was between him and Haji Muhammad Rafiq and Haji Muhammad Aziz about certain construction. Appellant Anwar Ahmed Khan was not party to the agreement dated 9‑3‑1978. Another prayer of Ephrahim Joseph in said suit was for possession after ejectment of Haji Muhammad Rafiq and Haji Muhammad Aziz who had occupied the disputed property in pursuance of the agreement dated 9‑3‑1978 for demolition and reconstruction of the premises, but they were continuing with possession even after expiry of the period for which an agreement dated 9‑3‑1978 came into effect. In none of these reliefs, appellant Anwar Ahmad Khan can be said to be interested. The only interest of appellant Anwar Ahmed Khan can be that Ephrahim Joseph had entered into agreement with him on 26‑1‑1980 and under such agreement Anwar Ahmed Khan was entitled to enter the premises in litigation and to demolish the old structure and raise new structure. His right as a co‑judgment‑creditor was limited to that extent and not beyond that. Admittedly Anwar Ahmed Khan being a Muslim could not be trustee of a Trust created for benefit of persons belonging to Bani Israil Community. In the instant case the appellant Anwar Ahmed Khan was joined as co‑plaintiff is Suit No.1002 of 1980 because of his right to demolish old structure and raise new structure as a contractor, being given such assignment by the Trust through Ephrahim Joseph on 26‑1‑1980. Hence death of Ephrahim did not result in according to Anwar Ahmed Khan more rights in the decree, than those possessed by him during lifetime of Ephrahim Joseph. As regards appointment of Rachal Joseph as trustee by the District Judge on 10‑11‑1987, it may be observed that the said order was maintained by this Court and the same has not been interfered with by the Hon'ble Supreme Court of Pakistan. The matter about appointment of Rachal Joseph as a trustee has become a closed chapter, because re‑opening of the point would tantamount to sitting over the judgment by which the order of the District Judge dated 10‑1.1‑1987 was maintained. It may be observed here that if Rachal Jospeh was appointed as trustee, it was not in substitution of her brother Ephrahim Joseph. As a matter of fact she was the only member of Bani Israil Community who came forward to be appointed as trustee and her application was not opposed by any other member of said community. Over and above this, the appellant being Muslim has no locus standi to call in question appointment of Rachal Joseph as trustee in execution proceedings. We have minutely examined the provisions contained in section 74 of the Trusts Act and no provisions contained in said section appear to have been violated in appointment of Rachal Jospeh as a trustee. Section 92 of C.P.C. comes into operation if there is any alleged breach of any express or constructive trust created for public purposes of a 13 charitable or religious nature or where the direction of the Court is deemed necessary for the administration of any such trust. In the instant case there was no allegation about breach of express or constructive trust. In the case of Harendra Nath Bhattacharya and others v. Kaliram Das and others AIR 1972 SC 246 it was held that a suit under section 92, C.P.C. can proceed only on the allegation that there is a breach of a public trust of a religious or charitable character or that directions from the Court are necessary for the administration of the trust. Moreover in the suit under section 92 of C.P.C. there must be a prayer for one or other of the reliefs that are specifically mentioned in the section, as further held. In the case of Fakir Shah and others PLD 1989 SC 283 the conditions to be fulfilled for filing a suit under section 92, C.P.C. have been spelt out. One of such conditions, as per sari case, is that the plaint must either allege that there is breach of trust or that the directions of the Court are necessary for the administration of the trust. In the present case as already stated, there was no allegation about breach of trust. In the cited case it was not laid down that for appointment of trustee of a trust of religious nature under section 74 of Trusts Act, consent of the Advocate‑General is necessary under section 92 of C.P.C. In the circumstances section 92 of C.P.C. was not applicable to the appointment of Rachal Joseph as trustee. The other cases cited at the Bar were not relevant. In the case of Inland Steam Navigation Workers Union's case AIR 1936 Cal. 57 there was question about registration of a trade union. In the case of Haji Abdullah Khan and others PLD 1965 SC 690 it was held that it is duty of the Court itself to apply the law and that a pure question of law not requiring any investigation into facts and which could not have been met by a plea of fact if raised at the proper stage, can be raised at any stage. In the case of Ali Muhammad v. Hussain Bux and others PLD 1976 SC 37 it was held that if an order is without, jurisdiction and void, then it need not be formally set aside. It was also held that failure of a party adversely affected, to go in appeal against such order within the prescribed time, does not preclude such party from challenging legality of such order if the same is null and void. In the case of Harendra Nath Bhattacharya and others AIR 1972 SC 246.it was held that a suit under section 92 is of a special nature which 'presupposes the existence of a public trust of a religious or charitable character and such suit can proceed only on the allegation that there is a breach of such trust or that directions froni the Court are necessary for the administration of the trust. In .the case of Qazi Muhammad Rafiq and others v. Qazi Feroz Bakhat and others 1984 SCMR 1570 it was held that the question whether certain persons can be regarded as representatives of the original decree‑holder can be decided by the executing Court under the provisions of section 47(3) of C.P.C. An execution application can be moved by one of the two or more decree‑holders if rest of the decree- holders have died as per the case of Kshirode Chandra Pal Chaudhry and others v. Brahmanath Pal Choudhry and another AIR 1936 Cal. 571, or where the decree‑holder applying for execution proves express authority from not applying decree‑holders, to receive the decretal amount or to have rcccived their share by them vide Wadero Shahbaz Khan Wadero Fateh Khan v. Kakalmal Budhumal and another AIR 1940 Sindh 230 or where the decree is assigned and one of the assignees applies for execution vide Shankar Hari Deshpande and another's case AIR 1942 Born.

29. These authorities have no applicability to the instant case where the decree obtained was not a money decree, and it was in. favour of a trust of which the appellant was neither trustee nor beneficiary. It has rightly been observed in the impugned order that an execution Court cannot go behind the order about appointment of Rachel Joseph as Trustee of Magain Shalome Synagogue Trust. The objections raised in the C execution proceedings by the J. Debtor or by the Intervenor were rightly overruled. Consequently (his appeal stands dismissed with costs. A.A./A‑1366/K Appeal dismissed.