Madhya Pradesh High Court
Gopal Das (Dead) Lrs/ 1. Smt Nirmala ... vs Mandir Murti Shri Laxminarayan Ji ... on 7 December, 2023
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 7 th OF DECEMBER, 2023
FIRST APPEAL No. 1314 of 2023
BETWEEN:-
1. GOPAL DAS (DEAD) LRS/ 1. SMT NIRMALA ALIAS
NIMMI D/O LATE SHRI GOPAL DAS ALIAS GOPAL
LAL W/O RADHA MOHAN UPADHAYA, AGED
ABOUT 65 YEARS, R/O RAJ PAYGA ROAD NAYA
BAZAR LASHKAR, GWALIOR (MADHYA PRADESH)
2. GOPAL DAS (DEAD) LRS/ 2. SMT. VISHWA MOHINI
@ DISHA MOHINI D/O LATE SHRI GOPAL DAS @
GOPAL LAL W/O SHIR P.D SHARMA, AGED ABOUT
61 YEARS, SHRI LAXMINARAYAN MANDIR NAYA
BAZAR LASHKAR GWALIOR M.P. (MADHYA
PRADESH)
3. GOPAL DAS (DEAD) LRS/ 3. SMT. BHARTI D/O
LATE SHRI GOPAL DAS @ GOPAL LAL W/O SHRI
M.N. DIXIT SHRI LAXMINARAYAN MANDIR NAYA
BAZAR LASHKAR GWALIOR M.P. (MADHYA
PRADESH)
4. GOPAL DAS (DEAD) LRS/ 4. SMT HIRANYA
GARBHA @ MANJU DIWEDI D/O LATE SHRI
GOPAL DAS @ GOPAL LAL W/O SHRI RAMESH
CHAND DIWEDI VILLAGE LANCH TEHSIL SEVDA
P.S. INDARGH DISTRICT DATIYA M.P. (MADHYA
PRADESH)
.....APPELLANTS
(SHRI RAJEEV SHRIVASTAVA - ADVOCATE FOR APPELLANT)
AND
1. MANDIR MURTI SHRI LAXMINARAYAN JI
MAHARAJ VIRAJMAN MANDIR MAASUME
MANDIR SHRI LAXMINARAYAN JI THROUGH
TRUST PRESIDENT NARESH GUPTA TRUST
SHIVHARE VAISHY KALAR SAMAJ LOK NAYAS
MANDIR MURTI LAXMINARAYAN NAYA BAZAR,
LASHKAR, GWALIOR (MADHYA PRADESH)
Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 12/8/2023
11:01:32 AM
2
2. THE STATE OF M.P. THROUGH COLLECTOR
DISTRICT GWALIOR M.P. GWALIOR M.P.
(MADHYA PRADESH)
3. MAHILA RAJA BETI(DEAD) L/R'S RAMSWAROOP
TRIPATHI S/O LATE SHRI RAGHUVAR TRIPATHI,
AGED ABOUT 60 YEARS, OCCUPATION: WARSHIP
(PUJARI) TAPOO MOHALLA DALBAZAR TIRAHA
NEAR MATA KA MANDIR LASHKAR GWALIOR
M.P. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI K.S. TOMOR - SENIOR COUNSEL WITH SHRI SANTOSH AGARWAL
AND SHRI J.S. KAURAV - ADVOCATES FOR RESPONDENT NO.1, SHRI
PURUSSOTAM RAI - GOVERNMENT ADVOCATE FOR RESPONDENT NO.
2/STATE & SERVICE OF NOTICE TO RESPONDENT NO. 3 HAS ALREADY
BEEN DISPENSED WITH VIDE ORDER DATED 12.09.2023)
This appeal coming on for Admission this day, th e court passed the
following:
ORDER
The present first Appeal under Order 21 Rule 103 CPC has been filed
against the order dated 17.04.2023 passed by Vth Additional District Judge,
District Gwalior in Case No. Ex. A-4/2022, whereby, learned Executing Court
has rejected the objection filed by the appellant/ judgment debtor.
Brief facts for deciding the present appeal are that on 12.05.1975 the suit
has been filed which has been partly allowed by learned trial Court on
23.01.2002, thereafter, first appeal has been filed by both the parties bearing
F.A. No. 78 of 2002 and 88 of 2002 whereby, appeal filed by the respondent
No. 1 has been dismissed and the appeal filed by the present appellant has been
allowed. Against the said order, respondent No. 1 has filed civil appeal before
the Hon'ble Supreme Court which has been allowed vide order dated
13.02.2018. Thereafter, respondent No. 1 filed an application under Section 92
of CPC before the learned Tahsildar and the learned Tahsildar has dismissed
the application under Section 92 of CPC by saying that revenue Court has no
power to decide the dispute regarding Trust, Civil Court is only empowered to
decide the dispute, but without filing the civil suit, respondent No. 1 has filed
execution proceeding before Executing Court which is not maintainable. Hence
present appeal has been filed before this Court.
In the present case present appellant filed the objection before the
Executing Court that present respondent No. 1 has no right to execute the
original decree as appellant and his ancestors being a Pujari has been doing
worship since last 150 years in the aforesaid temple. It is further stated in his
application that in the said decree learned trial Court in para 20, 21, 22 and 23
had denied the decree holder as a Trustee.
Be that as it may, Hon'ble Supreme Court in Civil Appeal No.3934 of
2009 (Murthi Shri Laxhminarayanji Maharaj and Ors. Vs. Ramswaroop Tripathi
and Ors.) vide order dated 13.02.2018 has set aside the order of this high Court
and has observed that respondents do not have any title. It is further directed
that the property will vest in the deity irrespective of the question who manages
the same as trustee and this can be done as per the Scheme under Section 92 of
the CPC in case of any dispute by the concerned statutory authority, if any.
There is no reason to hold that Pujari/Manager will become owner of the suit
property. On account of this order, it seems that execution proceedings were
filed before Vth Additional District Judge, Gwalior who vide order dated
17.04.2023 (Ex. P/1) in operative para has dismissed the application dated
26.09.2022 of Smt. Bharti and in the light of order of Hon'ble Supreme Court
has directed the Collector, District Gwalior for making proper arrangement in
regard to management in the disputed temple and this property and directed for
filing report by 13.05.2023. Against this order, Smt. Nirmala @ Nimmi filed this
first appeal and on the request of appellant, on 26.09.2023, this Court had
directed to maintain status quo as it exists today. On being specifically asked,
both the parties submitted that report of the Collector as per order of Executing
Court is not on record, but learned appellant counsel insists that the reply of the
Government Advocate may be treated as report of the Collector. However, in
the considered opinion of this Court, report of Collector and reply of the
Government Advocate are entirely two different things. Party should have
waited for the Collector to file report, therefore, on considered view, the stay
granted by this Court on 26.09.2023 is hereby vacated, although the appellant
strongly objects on vacating the stay.
Let report of Collector, District Gwalior be brought on record of the
District Court.
Let a copy of this order be sent expeditiously to the Collector, District
Gwalior as well as the Executing Court.
With the aforesaid, present appeal is disposed of.
Needless to say that a order of this Court is not required to be given to
any party. If he is aggrieved by any order, as per law he may approach an
appropriate forum.
Let record of the concerned executing Court be sent back along with this
order.
(AVANINDRA KUMAR SINGH)
JUDGE
(LJ*)
