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Nellathuru Venkatarayacharlu and anr. Vs. Nedathuru Krishnama Charlu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1913)24MLJ697
AppellantNellathuru Venkatarayacharlu and anr.
RespondentNedathuru Krishnama Charlu and ors.
Excerpt:
- - 1. it seems clear that the suit instituted with the consent of the collector is a good suit for' all reliefs referred to in section 92 of the code of civil procedare......made before the end of 1908'; till then the court could not have given the particular relief on a suit instituted on that consent; but that does not make the consent a nullity. the collector of course was able to give his consent irrespective of any provision of the code : but under the old code this consent would have been ineffective; even with it the court could not entertain a suit to remove a trustee; in 1909 the court was able to do so; it found a consent, already given and it was entitled to accept it as sufficient. the decree dismissing the suit must be reversed and the suit remanded for disposal according to law. we do not decide that all the reliefs asked for in the plaint can be given in this suit. it may be that having regard to the provisions of section 92 or to those of.....
Judgment:

1. It seems clear that the suit instituted with the consent of the Collector is a good suit for' all reliefs referred to in Section 92 of the Code of Civil Procedare. That section and Section 14 of Act XX of 1863, so far as the forms of relief to which they relate are the same, appear to offer a choice to persons interested in the trust; they may proceed under either. It cannot be that they are bound to proceed under both; for they might lead to a dead lock, if. per chance the Collector were to consent to a suit and the District Judge to refuse leave. It is not necessary to read the sections as involving this possibility and they ought not therefore so to be read.

2. The Collector's consent was given to a suit for these reliefs, the plaintiffs prayed for the removal of certain trustees, the appointment of others and the vesting of the property in the newly appointed incumbents. The consent was given in November 1908 and the suit was instituted on the 29th January 1909. It is now contended that in respect of the prayer for the removal of the trustees there is no valid consent, because in 1908 there was no provision of law enabling a suit to be instituted for that relief with the Collector's consent.

3. The sanction (or consent) shows that the Collector had considered the question on the merits and made inquiries and there is no doubt that he deliberately consented to the prayer for the removal of the trustees. Now when the suit was instituted the Court had to see that the Collector had consented to it and that his consent was sufficient to warrant its entertainment at the time of the suit. It found a consent deliberately given for the protection of the trust and for the purpose of enabling a suit to be instituted for a particular relief and there seems no reason why it should say ' I must treat this consent as no consent, because it was made before the end of 1908'; till then the Court could not have given the particular relief on a suit instituted on that consent; but that does not make the consent a nullity. The Collector of course was able to give his consent irrespective of any provision of the Code : but under the old Code this consent would have been ineffective; even with it the Court could not entertain a suit to remove a trustee; in 1909 the Court was able to do so; it found a consent, already given and it was entitled to accept it as sufficient. The decree dismissing the suit must be reversed and the suit remanded for disposal according to law. We do not decide that all the reliefs asked for in the plaint can be given in this suit. It may be that having regard to the provisions of Section 92 or to those of the Collector's consent, some of the claims are inadmissible. That question and the question, should it arise, whether any omission can be cured by a further consent obtained from the Collector after the suit, must ba left for decision by the District Judge. The costs of this appeal will abide the result.


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