ORDER Ashok Bhushan, J.
1. Heard Shri Swaraj Prakash, learned counsel for he petitioner.
2. By this writ petition, the petitioner has prayed for writ of writ of 'certiorari' quashing the order dated 9-4-1984 passed by learned, Munsif, Gorakhpur rejecting the application of the petitioner under Order XXI, Rule 32 Code of Civil Procedure and order dated 25-3-1985 passed by VIIth Additional District Judge dismissing the revision filed by the' petitioner.
3. Brief facts of the case are, a suit No. 444 of 1931 was filed by two plaintiffs namely Hari Prasad and Devi Prasad against two defendants namely Baba Swarup Das and Harnam Singh for mandatory injunction seeking demolition of the disputed constructions and damages. The said suit was ultimately decided in terms of the compromise on 21-12-1931. Compromise provided that disputed constructions made by the defendants would not be demolished but the said defendants were restrained from making any further constructions towards east of the land EF shown in the map. An application for execution under Order XXI, Rule 32 was moved by the petitioner before Munsif-I Gorakhpur. The applicant claimed himself to be legal representative of the plaintiffs. Applicant alleged that constructions have been made against the terms of compromise decree. It was prayed that respondents he sent to civil prison and their properties be attached. An objection supported by an affidavit was filed by the contesting respondents to the execution application. Objectors stated that they were not parties to the suit and they are not heirs of Baba Swarup Das and Harnam Singh, the execution application is not maintainable against them. It was stated that Guru Singh Sabha is a registered body which came into existence in the year 1953-54 and prior to that Guru Nanak Pracharini Sabha was in existence. Several other objections were taken in the application. Learned Munsif after hearing both the parties vide its order dated 9-4-1984 rejected the application. A revision was filed by the petitioner before the District Judge which too was rejected by the order dated 25-3-1965 passed by VIIth Additional District Judge. Against these two orders this writ petition has been filed.
4. Shri Swaraj Prakash, learned counsel for the petitioner contended that objectors are legal representatives of the defendants of Suit No. 444 of 1931 hence they are bound by the decree. It is contended that contesting respondents are intermeddler and are covered with the definition of legal representative as given in Section 2(11) of Code of Civil Procedure. It is contended that compromise decree was binding on the contesting respondents and the Courts-below have committed error in taking a contrary view. He further stated that separate suit cannot be filed by the petitioner.
5. I have considered the submission of the counsel for the petitioner and have perused the record. Learned Munsif held that suit No. 444 of 1931 was not a suit of representative nature and the defendants were also not impleaded in representative capacity. The learned Munsif further held that decree of injunction was not binding on the respondents since they were not party to the earlier suit. The learned Munsif held that remedy of the applicant lies in filing a suit against the contesting respondents.
6. The revisional Court after hearing both the parties found that although Gurunanak Dharam Pracharini Sabha was in existence at a time when original suit No. 444 of 1931 was filed yet the said Sabha was not made. party. The suit was not having character of representative suit. The decree was not passed against Gurunanak Dharam Pracharini Sabha. The objectors cannot be held to be legal representative of Judgment debtors of original Suit No. 444 of 1931. The revisional Court also took the view that separate suit ought to have been filed against the contesting respondents.
7. The counsel for the petitioner has given much emphasis on Section 2(11) of the Code of Civil Procedure which is quoted as below :
"legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;"
8. The counsel for the petitioner submits that objectors being in possession of property in question are intermeddler with the estate of the deceased, hence they are also covered in the definition of legal representative. From the objection of the contesting respondents as noted by both the Courts - below, it is clear that they do not claim any right from defendants Baba Swarup Das and Harnam Singh. The objectors also denied themselves to be heirs of original judgment debtors. Objectors stated that Gurunanak Singh Sabha came into existence in the year about 1953-1954 and prior to that Gurunank Dharam Pracharini Sabha was an existence. The reference of Suit No. 63 was made in which Guru Singh Sabha was held to be owner of the constructions on Plot No. 386/384. The submission pressed by counsel for the petitioner is that objectors being person who intermeddles with the estate of defendants, they are legal representative and bound by the decree. The 384 All counsel for the petitioner further stated that the Courts-below have accepted the objectors as intermeddler, hence the execution application ought to have been allowed.
9. Word 'Intermeddler' as contained in Section 2(11) of Code of Civil Procedure came for consideration before several High Court. Gwallor Bench of Madhya Bharat High Court in its Judgment reported in AIR 1952 Madh Bha 153 Ramprasad v. Jamnaprasad while considering term 'intermeddle' made following observation in paragraph 4 :
'The term 'intermeddle' has been used to mean an intermeddling with the assets of a deceased person in such a way as to denote an assumption of the authority, or an intention to exercise the functions of an executor or administrator. In other words, it has been used to mean what is known as an executor 'do son tort'. It is, therefore, essential in order to constitute a person an intermeddler, that there should be an intention on his part to act as a legal representative and to represent the estate of the deceased. A trespasser or a person who claims a title in himself adversely to the estate by the deceased cannot, therefore, be an intermeddler within the meaning of definition (Vide Code of Civil Procedure by Chitaley Vol. II Edn. v. at page 2670.)"
Executor 'dee son tort' has been described in Wharton's Law Lexicon as follows :
"If a stranger take upon himself to act as executor or administrator without any just authority, he is called in law an executor of his own wrong, 'Director of Education son tort', and is liable to the extent of the assets which have come to him and to all the trouble of an executorship without any of the profits or advantages."
10. Full Bench of Patna High Court had occasion to consider Section 2(11) of the Code of Civil Procedure. Patna High Court in its judgment reported in AIR 1987 Patna 239 Sudama Devi v. Jogendra Choudhary laid down in paragraph 11 :
"This word has also been the subject-matter of considerable judicial scrutiny both in Indian and English laws. In Mst. Naro v. Harbanslal, AIR 1962 Punj 457. Tek Chand, J., speaking for the Division Bench, observed as under :
"Intermeddling means to meddle with the affairs of others in which one has no concern, to meddle officious; to interpose or interfere Improperly. It signifies meddling with the property of another improperly. Intermeddling may take several forms including collecting or taking possession of the assets or other act, which might evince a legal control.
A legal person, who intermeddles, is on the same footing as an executor de son tort (executor of his own wrong) as he takes upon himself the office of an executor by intrusion and not so constituted by the testator. He is a person who without authority intermeddles with the estate of the deceased. Very slight act of intermeddling with the property of the deceased makes a person executor de son tort. .,.,.,.
There is authority for the proposition that when a person intermeddles with the property of the deceased he is a legal representative of the deceased for the purposes of procedure to the extent of the property with which he has intermeddled. ....."
It would follow from the above that precedent has also authoritatively given to the word 'intermeddler' an extremely expanded construction. Indeed, as has been noticed above, an intermeddler is on the same footing as an executor de son tort. In the Halsbury's Laws of England, Fourth Edition, Vol. 17, in Para 754, it has been said as under with regard to an executor de son tort-
'The slightest circumstance may make a person executor de son tort, if he intermeddles with the assets in such a way as to denote an assumption of the authority or an intention to exercise the functions of an executor or administrator. Demanding payment of debt due to the deceased, paying the deceased debts, carrying on his business, or disposing of goods may make a person executor de son tort; but setting up a colourable title to the deceased's goods is not enough. A person who enters upon or collects the rents of a deceased person's leasehold property and pays the ground rent may, by reason of privity of estate or estoppel, render himself liable to the landlord upon the covenants of the lease as executor de son tort, but a person who take over leasehold property from an executor de son tort does not."
11. For holding a person intermeddler within' the meaning of Section 2(11), Code of Civil Procedure., it is necessary to establish that such a person intermeddles with the estate of the deceased, he may be intermeddling with the estate of deceased without there being any proper legal authority, but persons must be professing or actually intermeddling with the property of deceased. From the objections raised by the contesting respondents to the execution application, it is clear that they never profess to intermeddle with the estate of the deceased rather the objections have categorically denied any trace of their right from judgment debtors. The revisional Court has observed that even if the objectors were treated as intermeddler they cannot be termed as successor of the deceased Baba Swarup Das and Harnam Singh. The revisional Court categorically held that objectors are not legal representative of judgment-debtors. The revisional Court specifically held that the provision of Section 2(11), Code of Civil Procedure cannot help the petitioner. Thus the revisional Court has not accepted that objectors are legal representative within the meaning of Section 2(11) of Code of Civil Procedure.
12. Learned counsel For the petitioner has also placed reliance on the judgment of the Apex Court, reported in AIR 1989 SC 1589, Custodian of Branches of BANCO National Ultramarine v. Nalini Bat Naique, The Apex Court while considering the scope of legal representative under Code of Civil Procedure held that word 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of deceased. Following was held in paragraph 4:
"4. After hearing learned counsel for the parties, we are of opinion that the learned judicial Commissioner committed serious error of law in setting aside the order of the trial Judge. "Legal representative" as defined in Code of Civil Procedure which was admittedly applicable to the proceedings in the suit, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased."
13. From the above judgment of Apex Court it is clear that apart from heirs those persons who represents the estate of the deceased without title are also legal representative but the basic fact which is to be present is representing, the estate of deceased.
14. In the present case objectors having never claimed or profess to represent the estate of deceased judgment-debtors they cannot be held to be intermeddler including within the definition of legal representative.
15. In view of foregoing discussion, I do not find any error in the orders passed by the Courts' below. Both the Courts below have rightly held that contesting respondents are not bound by the compromise decree passed in Suit No. 444 of 1931. Both the Courts have rightly rejected the application filed by the petitioner under Order 21, Rule 32 of Code of Civil Procedure. All aspects of the matter has been considered in detail by both the Courts below which do not suffer from any error warranting interference by this Court under Article 226.
16. The writ petition lacks merit and is dismissed.