Back
1904 Supreme(Mad) 56
IN THE HIGH COURT OF MADRAS
Venkatasami Pillai
Versus
Kuppayee Ammal and Ors.
Decided On : 31.08.1904
Trust property cannot be taken in execution when the decree is against a trustee for a personal debt, unless there is a breach of trust.
Headnote:
Trustee - Execution of Decree - Summary: The court ruled that trust property cannot be taken in execution when the decree is against a trustee for a personal debt, unless there is a breach of trust. The order authorizing the arrest of the trustee for execution of the restitution order was set aside.
Fact of the Case:
The plaintiff, acting as the manager of a temple, obtained a decree which was later reversed on appeal. An order for restitution was made, and when the plaintiff failed to make restitution, an application was made for execution of the order by his arrest.
Finding of the Court:
The court found that the decree was obtained by the plaintiff in his representative capacity as a trustee, and the order for restitution was made against him in the same capacity. The court set aside the order authorizing the arrest of the plaintiff for execution of the restitution order.
Issues: The issues involved the execution of a decree against a trustee for a personal debt and the authority to arrest the trustee for execution of the restitution order.
Ratio Decidendi: Trust property cannot be taken in execution when the decree is against a trustee for a personal debt, unless there is a breach of trust. Private property of an individual cannot be taken in execution of a decree against that individual in his capacity as a trustee, except in cases of breach of trust.
Final Decision: The order authorizing the arrest of the plaintiff for execution of the restitution order was set aside, and the defendants were entitled to interest at the rate of 9 per cent from the date of payment under the decree. The costs of the appeal and the memo of objections were to be paid by the defendants and out of the trust fund, respectively.
1. In this case the plaintiff sued as manager of a temple and he is so described in the decree which he obtained. On payment being made to him in pursuance of the decree he handed over the proceeds to the temple committee. On appeal, the plaintiffs decree was reversed, an order for restitution was made and on the failure of the plaintiff to make restitution, an application was made for execution of the order by his arrest.
2. The decree was obtained by the plaintiff in his representative capacity as trustee and the order was made against him in his representative capacity. Trust property cannot be taken in execution, where the decree is against a person who is a trustee if the debt in respect of which the decree is obtained is a personal debt. Conversely the private property of an individual cannot be taken in execution of a decree against that individual in his capacity as a trustee, excepting, of course, in a case, where the liability arises from a breach, of trust on the part of the trustee. Here there is no question of a breach of trust by the trustee.
3. The order of the (District Judge, in so far as it authorizes the arrest of the plaintiff by way of execution of the restitution order must be set aside.
4. As regards the memo of objections the defendants are entitled to interest at the rate of 9 per cent, from the date of payment by them under the decree.
5. The costs of this appeal must be paid by the defendants.
6. The costs of the memo of objections must be paid out of the trust fund.
