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C. Subramania Sastri and ors. Vs. Minakshi Naidu - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported in(1893)3MLJ128
AppellantC. Subramania Sastri and ors.
RespondentMinakshi Naidu
Excerpt:
- .....a vaishnavite.2. the appointment in question was originally made in 1881 by mr. hutchins, the then district judge of madura, acting under the powers conferred on a district judge by section. 10 of act xx of 1863. on appeal, the appointment was cancelled by this court, but this court's order was declared by the privy council to be without jurisdiction on the ground that no appeal lies from an order passed under section 10 of the pagoda act, (xx of 1863). this decision of the privy council appears to have been given effect to by an order of the district judge dated 15th august 1887, which order however, is not to be found in the records of this suit.3. the district munsif dismissed the suit (1) as not legally sustainable in his court and (2) as barred by limitation. on appeal, the district.....
Judgment:

1. The suit was brought in the District Munsif's Court for a declaration of the invalidity of the appointment of the defendant Minakshi Naidu as a member of the Committee of the Minakshi Devastanam at Madura, and for an injunction against his acting as such member, on the ground that the temple is one dedicated to Shiva, whereas the appointee is a Vaishnavite.

2. The appointment in question was originally made in 1881 by Mr. Hutchins, the then District Judge of Madura, acting under the powers conferred on a District Judge by Section. 10 of Act XX of 1863. On appeal, the appointment was cancelled by this court, but this court's order was declared by the Privy Council to be without jurisdiction on the ground that no appeal lies from an order passed under Section 10 of the Pagoda Act, (XX of 1863). This decision of the Privy Council appears to have been given effect to by an order of the District Judge dated 15th August 1887, which order however, is not to be found in the records of this suit.

3. The District Munsif dismissed the suit (1) as not legally sustainable in his court and (2) as barred by limitation. On appeal, the District Judge has upheld the District Munsif's decree both on the grounds on which the District Munsif rested his decree and on the further ground that neither Section 42 nor Section 54 of the Specific Relief Act can be held to apply so as to entitle plaintiff to a declaration or injunction. Hence this appeal by the plaintiff.

4. It is urged on behalf of the appellant, in the first place, that the suit is not for setting aside the order of appointment made by the District Judge, but for a declaration and for an injunction the period of limitation for both of which latter reliefs is six years, under Article 120 of Schedule II of the Limitation Act, and that as the suit is brought within six years from August 1887, when defendant was re-appointed in consequence of the decision of the Privy Council, it is not time-barred.

5. The suit is no doubt in form one for a declaration and consequential relief by way of injunction, but it is very clear that an injunction such as is asked for 'restraining defendant from performing any of the functions devolving on the committee of the Devastanam' can only issue if his appointment as a member of such committee is cancelled. Moreover, the declaration sought is that defendant's appointment as a member of the committee 'is illegal and invalid and consequently null and void ' Such a declaration would be tantamount to setting aside the order of appointment. There can be no doubt that the suit is in reality one to have the order of appointment set aside, and such a suit should have been brought within one year from the date of the order sought to be impeached: see Article 13 of Schedule II of the Limitation Act. Even assuming therefore the order in question to be that of 15th August 1887, this suit, not having been brought till 1891, has been rightly held by both the courts below to be time-barred.

6. It is unnecessary to consider the other grounds on which the suit has been dismissed by the Lower Appellate Court.

7. This second appeal is dismissed with costs.


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