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Ch. Moses Vs. K.D. Larael and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 70 of 1955
Judge
Reported inAIR1960AP312
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92 - Order 21, Rule 32
AppellantCh. Moses
RespondentK.D. Larael and ors.
Appellant AdvocateA. Venkatesam, Adv.
Respondent AdvocateT. Ananthababu, Adv.
DispositionAppeal allowed
Excerpt:
.....- decree passed under section 92 of code - application under order 21 rule 32 for execution of scheme decree dismissed by district judge - appeal against order held, direction in the scheme decree are in the nature of an injunction and scheme decree is within the ambit of order 21 rule 32. - - 2. complaining that the defendants respondents have failed to carry out the directions regarding the deposit of the documents in the premises of the church and the auditing of accounts for a period preceding the passing of the decree, the plaintiffs filed a petition under order 21 r, 32, c. he did not apply his mind to the question as to whether the respondents had failed to fulfil the' terms of the decree in regard to clause 3 of the scheme and the directions contained in the last part of..........filed by the appellant under order xxi rule 32 of the code of civil procedure for execution of a scheme decree. an action was laid under section 92 of the code of civil procedure by the present appellant and another for settlement of a scheme and for certain other reliefs in regard to the london mission memorial church. visakhapatnam. ultimately, this ended in a consent decree. by and under the terms of the decree, a scheme was settled for the management of the church in question providing inter alia for the leasing out of the properties of the church in public auction, for the appointment of legal advisers, for maintenance of proper accounts and for auditing of accounts. it was also agreed between the parties that all records relating to the properties of the church such as title.....
Judgment:

Chandra Reddy, C.J.

1. This is an appeal against the order of the District Judge, Visakhapatnam dismissing an application filed by the appellant under Order XXI Rule 32 of the Code of Civil Procedure for execution of a scheme decree. An action was laid under Section 92 of the Code of Civil Procedure by the present appellant and another for settlement of a scheme and for certain other reliefs in regard to the London Mission Memorial Church. Visakhapatnam. Ultimately, this ended in a consent decree. By and under the terms of the decree, a scheme was settled for the management of the Church in question providing inter alia for the leasing out of the properties of the Church in public auction, for the appointment of legal advisers, for maintenance of proper accounts and for auditing of accounts. It was also agreed between the parties that all records relating to the properties of the Church such as title deeds, wills, lease etc., should be kept in the premises of the Church and a list of the said documents should be submitted to the General Body, legal adviser, and to the Court before the next meeting of the General Body, and that the accounts for five years prior to the passing of the decree should be audited by a qualified and registered auditor.

2. Complaining that the defendants respondents have failed to carry out the directions regarding the deposit of the documents in the premises of the Church and the auditing of accounts for a period preceding the passing of the decree, the plaintiffs filed a petition under Order 21 R, 32, C. P. C. to compel performance of the acts undertaken to be done by them. The learned District Judge dismissed the application in the hope that this application by the plaintiffs would serve as an incentive for them to give effect to the terms of the decree, and that the directions relating to the same would bo worked out as early as possible. He did not apply his mind to the question as to whether the respondents had failed to fulfil the' terms of the decree in regard to Clause 3 of the scheme and the directions contained in the last part of the judgment based upon the compromise. Aggrieved by that order, the appellant has brought this appeal.

3. It is urged by the learned counsel for the appellant that the disposal of this matter by the District Judge was very unsatisfactory and that the pious hopes would not amount to a disposal. There is substance in this complaint of the appellant.

4. The learned counsel for the respondents raised a preliminary objection that Order XXI Rule 32 C. P. C. is inapplicable to a scheme decree and that the appellant misconceived his remedy. According to him, Order XXI Rule 32 C. P. C. contemplates only three situations, i.e. when there is a decree for the specific performance of a contract, or for restitution of conjugal rights, or when an injunction is issued by court and it cannot be attracted to a scheme decree. We are unable to accept the theory propounded by the learned counsel for the respondents.

5. Order XXI Rule 32 (1) C. P. G. recites :

'Where the party against whom a decree for the specific performance of a contract, or: for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the ease of a decree for the specific performance of a contract or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.'

It is no doubt true that this rule does not. in express terms, refer to a decree under Section 92 of the Civii Procedure Code. But, in our opinion the directions embodied in a scheme decree are in the nature of an injunction and as such the scheme decree falls within the ambit of Order XXI Rule 32 C. P. C.

6. To substantiate the contention that Order XXI Rule 32 C. P. C, is inapplicable to scheme decrees, Sri T. Anantha Babu draws our attention to a judgment of the Bench of tbe Madras High Court in Vaithilinga Mudaliar v. Theyagaraja Swami Devasthanam Tiru-varur, 71 Mad LJ 87 : (AIR 1936 Mad 581). It was ruled there that a provision in a scheme decree was inexecutable.

The learned Judges differed from the judgment of another Bench of the same Court in Vythilinga Fandarasannadhi v. The Board of Control. Sri Thia-garajaswami Devasthanam, Tiruvanir, 61 Mad LJ 904 : (AIR 1932 Mad 193) in which the opinion was expressed that scheme decrees were executable. We do not think that the ruling relied on by the counsel for the respondents comes very much to his rescue. The learned Judges have laid down that if a particular provision sought to be executed was really a part of the scheme decree, it was inexecutable. By necessary implication it means that if the clause that is sought to be put in execution is separable from the scheme decree, it is capable of execution. Dealing with the question of executability this is what Ven-katasubba Rao J.. who spoke for the Court, said :

'The true distinction is, not whether a provision in a scheme decree is directory or declaratory, but whether the provision sought to be executed is or is not in what is really the scheme part of the decree. To this distinction both Reilly, J., and myself have adverted in Ramacharyulu v. Narasimha Suryanarayana, 1933 Mad WN 183. There, both of us point out that the proper way off dealing with the matter is, first to separate the scheme part from the rest of the decree and that, when that is done, no provision in the scheme part is executable, whether it is directory or declaratory.'

These remarks make it abundantly clear; that if any provision in the scheme decree falls outside the scheme such provision would be put in execution. In a later case, Venngopalaswamivaru v. Seetharamanu-jacharyulu, AIR 1937 Mad 326 to which Venkatasubba Rao J. was a party, the learned Judges observed that the decree relating to the payment of arrears, which was included in the scheme decree, could be executed as it could not be regarded as having been embodied in the scheme part of the decree. The learned Judge who spoke for the court distinguished these earlier cases on the basis of the direction pointed out above. In our Opinion the situation in this ease is analogous to that in AIR 1937 Mad 328.

7. We are also fortified in our view by a judgment of the Bombay High Court in Damodarbhat v. Bhogilal, ILR 24 Bom 45. The principle enunciated there was that if a decree ordered particular acts to be performed by a person in the management of a temple, it could be enforced by the imprisonment of the defendants or by the attachment of their property or by both. It follows that Order XXI Rule 32 C. P. C. governs the instant case, and it was properly invoked by the appellant,

8. For these reasons, the preliminary objectionis over-ruled. Since the Trial court has not considered whether the defendants had performed the dutiesimposed on them by the decree, the order of theLower Court is set aside and the matter is remittedto the Trial Court for disposal according to law. Theappeal is allowed and the costs of the appeal willabide the result.


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