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Paul and anr. Vs. C.i. Antony and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 1073, 1074 and 1080 of 1970
Judge
Reported inAIR1971Ker277
ActsCode of Civil Procedure (CPC) , 1908 - Order 40, Rule 1
AppellantPaul and anr.
RespondentC.i. Antony and ors.
Appellant Advocate S. Eswara Iyer, Adv.
Respondent Advocate K.P. Radhakrishna Menon, Adv.
DispositionRevision dismissed
Cases ReferredLaxmanarao v. Amritlal
Excerpt:
civil - appeal - order 40 rule 1 of code of civil procedure, 1908 - receiver appointed by court to manage affairs of church - trustees were given liberty to seek direction of court in handling affairs - receiver not left with discretion with regard to disbursement of funds - court direction necessary for disbursement of funds - no power conferred within meaning of rule 1 - order not appealable. - - yamuna devi, air 1953 raj 121 was cited by the learned counsel for the respondents in support of the position that order 40 rule 1 cannot be invoked in situations like the present one......has no discretion in the matter of carrying out the direction.' it was further held by the learned judge:-- 'i cannot assent to the broad proposition that conferment of power on the receiver must necessarily imply that the receiver is given the discretion to decide whether to exercise the power or not. to read the word 'power' in the context of clause (d) in such a narrow and constricted manner would be not only to refuse to give full meaning and effect to that word but also to deny the right of appeal in cases where it may be most needed and if denied, might work grave injustice. the word 'power' is, i think, used in the broad sense of authority or capacity to do an act and where an order made by the court confers such authority or capacity on the receiver to do an act which.....
Judgment:

K. Sadasivan, J.

1. These revision petitions arise from the judgment of the learned District Judge of Trichur in civil miscellaneous appeal Nos. 34, 33 and 51 of1969 on the file of his court which arose respectively from M. P. Nos. 818/68, 763 and 2715 of 1969 on the file of the Addl. Munsiff Court, Trichur. The M. Ps. were preferred in O. S. 1061/62, which was a suit filed for declaration that the election of the defendants as trustees of the Chaldean church at Trichur on 9-12-1962 was void and for an injunction to restrain them from functioning as trustees. In the course of the suit, I. A. 13/64 was filed by the plaintiffs for appointment of a Receiver for the administration of the church and its properties. The application was allowed by the trial court; but on appeal by defendants 1 to 10, the application was dismissed by the Addl. District Judge of Trichur. From the order of the Addl. District Judge, the aggrieved plaintiffs came up in revision before this court in C. R. P. 467/66 and this court in reversal of the judgment of the learned appellate Judge allowed the revision, which eventually was confirmed by the Supreme Court. In its proceedings dated 29-1-1968 the Supreme Court in confirming the order gave the following further direction, viz.,:--

'The order of the High Court appointing receivers shall continue. The receivers shall function subject to the limitation that they will not interfere with, or take part in, the management of the spiritual affairs of the church. The Trustees will be at liberty to ask for directions from the court with regard to the necessary disbursement from the funds in the hands of the receivers.' Thereafter the M. Ps. mentioned above were preferred by the plaintiffs requesting the court to give certain directions to the Receivers. In M. P. 818/68, which is the subject-matter of C. R. P. 1073/70, the request made was to issue directions to the Receivers to take possession of the two Bandarams, viz., the Kallarakkal Bandaram and Kurishupalli Bandaram and the collections therein. In M. P. 763/69, which is the subject-matter of C. R. P. 1074/70, the request made was that the Receivers should be given the direction to disburse the salaries with arrears, to the priests working in the parishes which were subsidised by the Trustees; and in M. P. 2715/69, which is the subject-matter of C. R. P. 1080/70, the request made was to issue directions to the Receivers to take possession of the Bishop's palace, car, printing presses Seminary, books, furniture, umbrellas, crosses etc.

The learned Munsiff in allowing these petitions has issued directions to the Receivers to take possession of the Bandarams and to disburse the salaries to the priests from out of the trust funds. But in respect of the palace, library and furniture of the 1st defendant, the court refused to issue any direction as the court thought that any such direction is likely to be interpreted as interference with the spiritual affairs of the church, as the 1st defendant was considered to be their spiritual head by one section of the parishioners. But such a reservation was not made in respect of the umbrella, valuables, gold and silver cross. These articles were found to fetch considerable income as it was the practice to rent them out. So the receivers were directed to take steps for getting from the 1st defendant the collection of the rents made by him from that source.

2. The defendants aggrieved by the above orders preferred Civil Miscellaneous Appeals to the District Judge of Trichur The learned District Judge has dismissed the appeals holding that the orders are not appealable.

3. Under Order 43, Rule 1 (s) Civil P. C., orders passed under Order 40, Rule 1 or 4 alone can come. The question, therefore for decision is whether the orders passed by the learned Munsiff in the various M. Ps. would fall under Order 40, Rule 1, Civil P. C. The learned appellate Judge has held that they would not, and on a review of the position in all its aspects I am also of the same view. The matter was argued before me rather exhaustively touching even on the merits of the case. But I do not think it proper for the disposal of the matter before me that I should go into the merits of the matter. Learned counsel argued that the orders in question will fall under Sub-rules (c) and (d) of Order 40, Rule 1, Civil P. C. The Rule reads: 'Where it appears to the court to be just and convenient the court may by order--

(c) commit the same to the possession, custody or management of the receiver, and

(d) confer upon the receiver all such powers as to bringing up and defending suits and for the realisation, management, protection, the collection of the rents, and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the court thinks fit.' I do not think any of the orders under consideration would fall under (c) or (d) of Order 40, Rule 1. Order 40, Rule 1 can apply only to an order appointing a receiver and cannot apply to cases where the receiver has already been appointed and that possession has already been directed to be delivered to him. In the present case, the order appointing receiver has finally been confirmed by the Supreme Court subject to the limitation that the Receivers shall not interferewith or take part in the management of the spiritual affairs of the church. So long as the Receivers function within the said limitation, the court will have no power to interfere with their functions. The Supreme Court has further directed that with regard to the necessary disbursement from the funds in the hands of the Receivers they will have the liberty to ask for the directions of the court from time to time. It is consistent with that that prayers were made by the plaintiffs to issue various directions regarding the properties of the church. It is not possible with respect to any of the directions now given, to argue that if both directions are implemented the Receivers will, in effect, interfere with the management of the spiritual affairs of the church. With respect to the collections in the bandarams the learned counsel would argue that they are intended to meet the religious requirements of the church and any interference with such funds would amount to interference with the spiritual affairs of the church.

This is too far-fetched an argument to carry any weight in connection with the present matter. The receivers by taking possession of the bandarams will only be in charge of the funds in the bandarams. Disbursement of the money can be had only under the directions of the court. For all legitimate expenses the parties can move the court for necessary directions being given to the Receivers and thus the usual functions of the church can be attended to without default. So also with respect to the disbursement of the salary. Disbursement of the salary to the priests working in the parish from out of the trust funds will not amount to collection of rents and profits or payment of auditors fee for work done as was the case in Lachminarayan Modi v. Naik & Co., AIR 1947 Pat 5, which was relied on by the learned counsel for the petitioners. A Bench decision of the Rajasthan High Court in Ajit Singh v. Yamuna Devi, AIR 1953 Raj 121 was cited by the learned counsel for the respondents in support of the position that Order 40 Rule 1 cannot be invoked in situations like the present one. There Wanchoo, C. J., held:--

'Under Order 40, Rule 1(d) the court confers powers on the receiver to do certain acts. Conferment of such power implies that the receiver is left with the discretion to decide himself whether he would exercise those powers in a particular set of circumstances. But where the court merely passes an order or gives a direction which the receiver is bound to comply with, it cannot be said that any power is being conferred onthe receiver within the meaning of Rule 1(d). Such an order is not appealable under Order 43. Rule 1(s).'

The question to be considered therefore is whether the directions in the present instance are directions which the receiver is bound to comply with or they are directions in regard to which the Receiver is to exercise discretion and decide for himself whether he should exercise those powers in a particular set of circumstances. I think in the present case the directions issued are those which the Receiver is bound to comply with- This view seems to have been dissented from by a Single Bench of the Gujarat High Court in Laxmanarao v. Amritlal, ILR (1966) Guj 784. There the learned Single Judge held that:--

'The giving of a direction to a receiver to do an act, which but for the direction the receiver had no power to do amounts to conferment of power on the receiver within the meaning of Order 40, Rule 1, Clause (d) even though the receiver has no discretion in the matter of carrying out the direction.' It was further held by the learned Judge:-- 'I cannot assent to the broad proposition that conferment of power on the receiver must necessarily imply that the receiver is given the discretion to decide whether to exercise the power or not. To read the word 'power' in the context of Clause (d) in such a narrow and constricted manner would be not only to refuse to give full meaning and effect to that word but also to deny the right of appeal in cases where it may be most needed and if denied, might work grave injustice. The word 'power' is, I think, used in the broad sense of authority or capacity to do an act and where an order made by the court confers such authority or capacity on the receiver to do an act which otherwise he would not have authority or capacity to do, it would be an order conferring power on the receiver to do such act within the meaning of Clause (d).'

I think, in the circumstances of the case, the Bench decision of the Rajasthan High Court cited above reflects the correct view, with which I am in respectful agreement. The conferment of power on the Receiver implies that such discretion is left with the Receiver to decide for himself whether he would exercise power in the particular circumstances or not; but in the present case it is patent that the directions given are such that the Receivers are bound to carry out without any discretion on their part, and in such cases it would not be possible to say that any power is conferred on the Receivers within the meaning of Order 40, Rule 1 (d). Powers havealready been conferred by the order of the Supreme Court and in the same order it has further been clarified that the Receivers with regard to the disbursement of the funds etc., can have directions from time to time from the court. It was on the above authority that the directions were requested to be given to the Receivers and actually given by the orders now under consideration. They are, therefore, only in the nature of mere directions in respect of which no conferment of power is involved.

4. I would, therefore, agree with the lower appellate court in its conclusion that the orders are not appealable. These revision petitions are hence dismissed.


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