Horace Owen Compton Beasley, Kt., C.J.
1. The facts out of which this appeal arises have already been set out in the judgment in C.R.P. No. 1399 of 1925. On the 19th July, 1925, the newly appointed trustees as petitioners sought to execute the decree of the Subordinate Judge referred to in C.R.P. No. 1399 of 1925 and they filed E.P. No. 51 of 1925. The respondents opposed that petition and raised a number of objections before the then Subordinate Judge of Vellore who dismissed the petition on the grounds that the newly appointed trustees the petitioners were not parties to the decree and had not been added as parties under Order 1, Rule 10, Civil Procedure Code, that the right to execute the decree was not given to them, that they had not come under Order 22, Rule 10, Civil Procedure Code and were not transferees of the decree and further that the order that the Court was to approve of the appointment of the newly elected trustees was ultra vires and also that the decree is a variation of the provisions of the consent decree. The learned Subordinate Judge further said that the trustees must come by a separate suit and have their claims as trustees recognised by the Court--this notwithstanding the fact that an application was made to the Court for the approval of the appointment of the newly elected trustees and the Court's approval was given. On behalf of the respondents it is pointed out that the plaintiffs in the suit first sought to execute: the decree by an execution petition but that owing to the right of the plaintiffs to execute the decree being questioned in the office the petition was withdrawn and the present petitioners, the appellants here, substituted for the plaintiffs in this suit. This, it is argued on behalf of the respondents, is contrary to all practice and that the petitioners should have applied to have themselves brought on the record as parties to the suit and that not having done so they cannot execute the decree nor can they be treated as assignees of the decree and continue the proceedings because the procedure provided for by Order 22, Rule 10 has not been followed. (Ratnam Pillai v. Annamalai Desikar (1923) 46 M.L.J. 341.)
2. Much reliance was placed upon the Full Bench decision in Veeraraghavachariar v. The Advocate-General of Madras I.L.R. (1927) M. 31 : 53 M.L.J. 792 because it was argued that the provision in the scheme that after the new trustees had been elected their appointment was subject to the confirmation of the Court was ultra vires. The Full Bench, of which I was a member,, held that if in a decree for a scheme framed under Section 92, Civil Procedure Code, liberty is given to persons to apply to the Court for directions merely to carry out the scheme already settled such reservation of liberty in the decree will be intra vires if the assistance of the Court can be given without offending against Section 92 of the Civil Procedure Code, but where liberty is given to apply to the Court for alteration or modification of the scheme such reservation is ultra lines as offending against that section. It is very strange to find that the respondents who were parties to the suit and the compromise decree and agreed to the scheme are now here contending that the provision is ultra vires and in my opinion they have not only shown themselves obstructive; but have misapplied the Full Bench division. Dealing with this question Phillips, J., on page 44 says:
This principle, therefore, of reserving liberty to apply in temple suits appears to me to be. based on wrong premises. It should only be done when the Court is unable, or for good reasons, thinks it advisable not to finally determine any question arising for its decision but to leave such decisions for a future date. Unless there is some ground of this sort, the decision must necessarily be final and therefore an order that such final decision can be altered by a mere application would seem to be ultra vires. I may observe here that the question put to us is a double question and the answer to the two parts of the question must be different. The first is 'Where liberty to apply is reserved...to ask for directions as to carrying out the scheme. So far as' this is concerned this may well be intra vires unless it contravenes the provisions of Section 92, Civil Procedure Code, for the assistance of the Court is asked merely to carry out what it has already ordered, and if such assistance can be given without contravening the provisions of Section 92, there can be no objection to such a rule being framed.
3. In the present case there was no alteration or modification of the scheme provided for. What was provided for was the carrying out of what had already been ordered, namely, the appointment of now trustees. For greater caution it was provided that the election held was to be subject to the confirmation of the Court and there is no substance in the argument that such an order contravenes the provisions of Section 92, Civil Procedure Code.
4. It is further argued that paragraph 2 of the consent decree directs that the amounts found to be owing by the defendants are to be payable to the plaintiffs and not to the newly elected trustees but that the order made in C.M.P. No. 107 of 1924 directs such sums to be paid to the trustees; and it is contended that this is a variation of the consent decree and that a consent decree cannot be varied except by consent. In support of this argument the Privy/Council decision in Kinch v. Walcott (1929) 57 M.L.J. 429 is referred to. Here again this argument has no substance. Clause (2) of the decree speaks of what is due to the defendants from out of the temple funds and directs that what is due to or by any of the parties to the other the same is to be paid by whomsoever it is found payable to the other. This clearly means that the money found to be due by either the plaintiffs or the defendants is due from or to the temple and it certainly does not mean that the plaintiffs are themselves to pay moneys due by the temple to the defendants out of their own pockets, nor does it mean that the sums found due from the defendants are to go into the pockets of the plaintiffs. The decree clearly contemplates payment to and by the only persons competent to deal with the temple funds, namely, its trustees. Further, Clause (3) provides that it is only on payment to the 1st defendant of whatever sum that may be found due by the Commissioner that the newly elected trustees can take possession of the temple and its properties. Clauses (2) and (3) clearly have to be read together; and when Clause (3) of the Order in C.M. P. No, 107 of 1924 is referred, to, it is seem that the defendants are to pay sums of money to the temple trustees on behalf; of the temple and that the trustees of the temple can execute the decree on behalf of the temple only on payment of the Court-fees on the amounts ordered to be paid by the 1st and the 3rd defendants to the said temple trustees. Obviously there has been no variation of the consent decree. As there has been in my view no variation of the consent decree (Lachiram v. Jana Yesu Mang (1914) 27 I.C. 830 and Gora Chand Haldar v. Prafulla Kumar Roy I.L.R. (1925) C. 166) have no application. Even the latter case does not assist the respondents' argument, because there it was held that where a decree presented for execution was made by a Court which apparently had no jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction and that within these narrow limits the executing Court is authorised to question the validity of a decree. But if, on the face of the decree, there is no want of jurisdiction, the executing Court cannot question the decree. Here the decree directs the trustees to execute the decree, and if no objection was raised when the final decree was passed that objection cannot be raised in execution. (Zamindar of Ettiyapuram v. Chidambaram Chetty I.L.R. (1920) M. 675 : 39 M.L.J. 203, Hari Gopind v. Narsingrao Konherrao I.L.R. (1913) B. 194 and Kalipada Sarkar v. Hari Mohan Dalal I.L.R. (1916) C. 627.) In Lakshmibai v. Ravji (1928) 31 Bom. L.R. 400 the case in Gora Chand Haldar v. Prafulla Kumar Roy I.L.R. (1925) C. 166 was dissented from. It was there held that the executing Court has no jurisdiction to go into the question whether the Court which passed the decree committed any error in the exercise of its discretion. The decree in this case is perfectly clear. It directs the trustees to execute the decree on behalf of the temple and they are the persons in whose favour the decree has been passed; and the Order in C.M.P. No. 107 of 1924 was the only reasonable way of carrying out the consent decree. A decree which directs the delivery of trust property to new trustees is perfectly correct (Jai Narain v. Bankey Lal (1919) 17 A.L.J. 957 and Ghazaffar Husain Khan v. Yawar Husain I.L.R. (1905) A. 112.) In the latter case at page 117. it is stated as follows:
A suit instituted under Section 539 is not a suit in which plaintiffs claim or can claim for themselves possession of the trust property. They merely ask the Court to vest the trust property in trustees duly appointed to manage the trust and to take it out of the hands of trustees who have been guilty of mismanagement. No change in the beneficial ownership is sought. The Court has undoubtedly power under the section to vest the trust property in the new trustees, 'and it seems to me reasonably clear that the Court may direct a trustee who is being removed from the trusteeship to make over the trust property to the new trustee or trustees.
5. It is clear that such a decree is an executable one and not merely declaratory. (Baiakrishna Chettiar v. Krishnamurthi Aiyar (1926) 52 M.L.J. 182.) In Miyaji alias Mahomed Ghouse Sahib v. Sheikh Ahmed Sahib I.L.R. (1908) M. 212 : 18 M.L.J. 205 it was held that it is competent to the Court in a suit under Section 14 of the Religious Endowments Act to direct the removal of a trustee and to order a person competent to appoint a new trustee to make such appointment and to direct the trustee removed to surrender possession of property and pay any damages decreed to the new trustee to be appointed. In Gnana Sambandha Pandara Sannadhi v. Kandaswami Thambiran I.L.R. (1887) M. 375 it was held that if the power of appointment of a trustee is vested in any person, such person may be directed to make the appointment and possession may be delivered to him.
6. In my view, the order of the learned Subordinate Judge was clearly wrong and must be reversed and this appeal allowed with costs. The Lower Court will restore the petition to the file and dispose of it according to law.
Pakenham Walsh, J.
7. I agree and have nothing to add.