1. This petition is preferred under Articles 226 and 227 of the Constitution of India challenging the legality and validity and propriety of the order dated 2.2.2012 passed by the Small Causes Court, Ahmedabad in Execution Application No.1020 of 2004 preferred in Summary Suit No.5617 of 1999. Jangam warrant came to be issued against the present petitioners and respondents No.2 and 3, which is being challenged in this petition.
2. Respondent No.1 herein preferred Summary Suit No.5617 of 1999 for recovery of Rs.50,000/- and amount of interest of Rs.72,750/- against respondent No.2 Sabras Vidhyalay and Dhirubhai Dayalbhai Davariya and Mrs. Sumitraben Dhirubhai Davariya. The petitioners herein were not parties to the original suit proceedings. It is the case of respondent No.1 that he was appointed as a teacher in the school in the year 1993 and gave sum of Rs.50,000 for the development of the school and this was given with a condition of return of the said amount in the event of termination of his service from the school. Receipt to this effect was given to him on a letter head of Sabras Vidhyalay by Dhirubhai Dayalbhai Davariya, who was the Managing Trustee of the school at the relevant point of time. It is argued by the petitioners that original defendants No.2 and 3 Dhirubhai and Smt. Sumitraben were respectively blind and heart patient. They made a registered Trust in the name of Royal Education Trust and they had run the school in the said name since 1.1.2007. The said premises was allegedly taken away by the teachers, who did not disclose the correct facts before the trial Court.
3. Leave to defend was permitted with a condition of deposit of Rs.25,000/- on 6.10.2000. The original defendant Dhirubhai was unaware of this order. Therefore, ex-parte decree was passed by the Court on 17.8.2001. By the time he knew about the ex-parte decree, his health was deteriorating. However, respondent No.1 paid the sum of Rs.8,000/- to the petitioner from his personal account. They also ensured to pay remaining amount by giving it in writing on 13.6.2002, which was in presence of the present petitioner No.2 and one Nirajbhai. However, petitioner No.2 was not a party to that writing.
4. Jangam warrant was issued and the original defendants preferred restoration application inter alia by praying for setting aside ex-parte decree on 17.8.2001. During the pendency of this restoration application, Dhirubhai died on 20.6.2003. Though the suit was restored, it was not communicated by the lawyer and original defendant No.3 Sumitraben also could not remain present.
5. Respondent No.2 preferred Execution Petition being Execution Petition No.1020 of 2004 and as the original defendant Nos.2 and 3 had died by then, application was moved for joining other trustees. The petitioners herein denied the contentions raised in the application for joining parties. The Trust since is having legal and separate entity, according to the petitioners, no personal liability would be claimed against individual trustees. Original defendants No.2 and 3, who were the trustees, were the parents of the present petitioners. No enforcement can be insisted upon in their personal capacity. The Executing Court without addressing to the real issue has passed an order dated 2.2.2012 and, therefore, this petition. However, order impugned is considered at this stage. Learned Judge, Small Causes Court No.7 issued Jangam warrant against opponents No.1,4, 6 and 7.
6. All the contentions raised before this Court have been raised before the Executing Court. The Court also took note of the written submissions made and noted the fact that when earlier the Jangam warrant was issued, amount of Rs.8,000/- had been given by the original defendant Dhirubhai and he had given it in writing accepting the liability of paying the remaining amount of decree. The Court also noted the fact that it was a valid decree passed in favour of the present respondent No.1 and when present petitioners, who are opponents No.6 and 7 and opponent No.4 is the Trust and opponent Nos.6 and 7 being the Trustees, whose father was the Trustee when the amount of Rs.50,000/- was borrowed from respondent No.1 towards donation/deposit on the condition that on termination of service, the said amount would be returned, present petitioners, who are opponents No.6 and 7, also were liable.
7. First of all, it needs to be clarified that decree passed is valid decree, which has not been so far set aside by any competent appellate Court and, therefore, the fruits of decree needs to be made available to the parties. Even if it was ex- parte decree on the original defendants having failed to abide by the leave to defend condition of payment of Rs.25,000/-, the competent Court has passed a decree in favour of the respondent No.1 herein. It can be also noted that attempt to set aside the ex-parte decree and restore the suit though succeeded, original defendants failed to reap the benefit of such order as admitted by them in this petition. Whether it was on account of illness of Managing Trustees or otherwise is not the question to be gone into by this Court at this stage. Suffice to hold that the decree holds the field.
8. In such circumstances, the only question that requires to be addressed is as to whether the present petitioners, who are the Trustees of this Sabras Vidhyalay, can be made liable for the responsibilities of the Trust.
The Trustee is expected to conduct affairs of the Trust in the same manner as an ordinary prudent man of business would conduct his own affair as held by the Apex Court in the case of Hukumchand Gulabchand Jain vs. Fulchand Lakhmichand Jain and others reported in AIR 1965 SC 1692 and the Trustee, who uses the property of the Trust for his personal use shall have to account for the same. In the instant case, not only they are the heirs of original Trustees, who have given them the properties of the private Trust but they have been also the part of the compromise arrived at, at the time when Jangum warrant was issued under Order 21 of the Code of Civil Procedure.
They both are children of original defendants No.2 and 3 Dhirubhai and Smt. Sumitraben. Collection was made for and on behalf of the Trust by Dhirubhai from respondent No.1 herein. This amount was given by way of donation/deposit to the Trust and, therefore, the Trust shall have to return the amount. Opponent No.4 is the Trust whereas opponent Nos.6 and 7 (present petitioners) are the Trustees. It is also needed to be noted that being the Trustees these persons would be liable to pay from the property of the Trust and at the time of issuance of the Jangam warrant, earlier as the Court has noted that cheque of HDFC Bank No.305958 was given by Dhirubhai whereby he had undertaken to pay remaining amount of decree and present petitioner No.2 also had ensured to pay the remaining sum on 13.6.2002. It is incidental that present two petitioners are legal heirs of both the trustees, who died and this is a private Trust. It thus appears that decree which has been passed in favour of respondent No.1 herein long ago could not be executed even in the year 2012, when the original trustee had ensured the remaining amount of the decree to be paid again. It was by way of compromise that this was decided and this writing is at Annexure-D. On account of the fact that this was a private Trust where the parents of this petitioners have taken over from their parents and when petitioner No.2 herein had also ensured by way of compromise entered into in presence of original defendant No.2, no interference is required in the order of this Court.
9. It is also to be noted that one of the major contentions raised by the petitioners was that the school has been taken over by respondent No.1 and other teachers. From the documents, which has been brought on the record, this does not appear to be correct proposition and, therefore also, order impugned calls for no indulgence. Resultantly, this petition is rejected.
SUDHIR (MS SONIA GOKANI, J.)