1. These are two appeals against the orders passed by the District Court, Ellore, in O. Ps. Nos. 82 and 83 of 1927.
2. The applications related to two temples and were made under Section 44 of the Hindu Religious Endowments Act II of 1927.
3. The applicants claimed to be the trustees under a scheme of the Court and they alleged that the respondents (who are the appellants here) held certain inams charged with the performance of dancing girl services in the temples, that the respondents had failed to perform the services and that therefore the applicants had had to get the services performed by others, and they sought an order of the Court under Section 44 to recover the amount from the respondents (appellants).
4. The defence was that the applications were not maintainable as the Inams were not charged with the service, and that as a matter of fact the respondents had rendered the services and had been paid separately by the trustees.
5. Both applications were heard together.
6. O.P. No. 83 was dismissed on the ground of want of proper notice and O.P. No. 82 was allowed.
7. The respondents appeal. The only matter in appeal in A.S. No. 418, which is against the order in O.P. No. 83, is as regards costs, so that A.S. No. 417 is the main appeal.
8. A preliminary objection has been raised that the appeals are incompetent and reliance is placed for this position on the recent ruling of a Full Bench of this Court in Rajagopala Chettiar v. Hindu Religious Endowments Board, Madras I.L.R.(1933)Mad. 271 : 66 M.L.J. 43 while the appellants rely to the contrary on an earlier Bench ruling in Lakshmindra Tirta Swamiyar v. The President, the Board of Commissioners, H.R.E., Madras I.L.R. (1932)Mad. 712 : 65 M.L.J. 364.
9. The question decided in Rajagopala Chettiar v. The Hindu Religious Endowments Board, Madras I.L.R. (1933)57 Mad. 271 : 66 M.L.J. 43 was that no appeal lay from an order passed by the District Judge under Section 84(2) of the Hindu Religious Endowments Act either under the Act itself or under the Code of Civil Procedure.
10. The question decided in Lakshmindra Tirta Swamiyar v. The President, the Board of Commissioners, H.R.E., Madras I.L.R.(1932)Mad. 712 : 65 M.L.J. 364 was that an appeal lay from an order of the District Court under Section 70 of the same Act.
11. What we have therefore to decide here is whether the 'ratio decidendi' of the Full Bench case applied to the present case, in which event of course we are bound by it, or whether we are free to adopt the reasoning of Lakshmindra TirtaSzva-miyar v. The President, the Board of Commissioners, H.R.E., Madras I.L.R. (1932)Mad. 712 : 65 M.L.J. 364.
12. Taking first the Full Bench Case it begins with the discussion of whether the words of Section 84(2) expressly make the order of the District Court final. Sections 53(4) and 76(3) are contrasted with 77(2) and 84(2) in this matter. It was not found necessary to determine the point finally, because even if it were accepted that the Act itself did not expressly forbid an appeal it was not contended that it gave it, and therefore the right of appeal claimed was based on the Civil Procedure Code, and it was from this point of view that the appeal was dealt with.
13. In neither Section 44 nor Section 70 is there anything said about the finality or otherwise of the order of the Court so that as far as the present case and the Bench case Lakshmindra Tirta Swamiyar v. The President, the Board of Commissioners, H.R.E., Madras I.L.R.(1932)Mad. 712 : 65 M.L.J. 364 are concerned the question as to whether the Act expressly forbids an appeal does not arise, and the arguments in both cases turn entirely on the applicability of theprovisions of the Civil Procedure Code to the case. It is hardly necessary to premise that, to quote the words of Madhavan Nair, J., in the Full Bench case at p. 27Z 'The law is well settled that it cannot be assumed that there is a right of appeal in every matter which comes under the consideration of a judge'.
14. Such right must be given by Statute or some authority equivalent to a Statute Minakshi v. Subramanya .
15. Also, as observed byLakshmana Rao, J., in the Full Bench case at p. 292:
The Code of Civil Procedure is not in terms made applicable to proceedings under the Madras Hindu Religious Endowments Act and, as pointed out in Parasurama Aiyar v. Seshier I.L.R. (1903)Mad. 504 and Datnodara Menon v. Kittappa Menon I.L.R.(1911)Mad. 16 : 21 M.L.J. 613 , Civil Procedure Code, which provides that the procedure in regard to suits should be followed as far as it can be made applicable in all proceedings in any Court of Civil jurisdiction, only extends the mode of trial and the procedure incidental thereto. It will not give a party to a proceeding, not a suit, a right of appeal.
16. Section 44 with which we have to deal is certainly more analogous to Section 70, under which Lakshmindra Tirta Szvamiyar v. The President, the Board of Commissioners, H.R.E., Madras I.L.R.(1932)Mad. 712 : 65 M.L.J. 364 was decided, than to Section 84(2) for there is nothing in the latter section about enforcing an order as if it were a decree of such Court. Nevertheless it cannot be doubted that an order under Section 84(2) would have all the force of a declaratory decree and would be executable to the same extent.
17. Section 44 so far as it is material to this case runs:
Where an endowment for the performance of a charity or service connected with a temple consists merely of a charge on property and there is failure in the due performance of the charity or service by the person responsible, the trustee of the temple may require the person in possession of the property on which the endowment is a charge to pay to the trustee the expenses incurred, or likely to be incurred in causing the charity or service to be performed otherwise. In default of such person making the payment as required by the trustees the Court shall, on the application of the trustee, pass an order for the recovery of the amount and such order may be enforced as if it were a decree of such Court.
18. Then follows a proviso with which we are not concerned here.
19. Compare this with Section 70 which runs:
(1) The costs expenses and contributions payable under Sections 68 and 69 shall be assessed on and notified to the trustee of every math and temple in the prescribed manner.
Where the contribution or a portion of the contribution has to be paid by a specific endowment, the same shall be assessed on and notified to the trustee of the specific endowment also.
(2) Such trustee shall, within three months of his receipt of such notice within such further time as may be granted by the Board or Committee, pay out of the funds of the math or temple concerned the amount so demanded to the President of the Board or Committee, as the case may be. or to any person authorised by him; and, in default of his doing so, the Court shall, on the application of the President of the Board or Committee, recover the amount as if a decree had been passed for the amount by the Court against the Religious Endowment concerned:
Provided that the Court may for reasonable cause postpone the recovery of the amount or order payment thereof in instalments.
20. Now if there is any distinction between the power of the Court in these two sections it might well be argued that the Court plays a lesser role under Section 70 than under Section 44 for under Section 44 the Court itself makes the order which can then be enforced as its own decree, while under Section 70 it simply recovers the money on the application of the President of the Board or the Committee. It might therefore well be argued that in the one case the Court itself makes the order which it carries out, and in the other merely carries out the order of another body and that therefore the decision under Section 70 in Lakshmindra Tirta Swamiyar v. The President, the Board of Commissioners, H.R.E. Board, Madras I.L.R. (1932)Mad. 712 : 65 M.L.J. 364 a fortiori applies to the present case under Section 44. Whether this distinction is correct or not it is at least clear that, if the decision in Lakshmindra Tirta Swamiyar v. The President, the Board of Commissioners, H.R.E. Board, Madras I.L.R.(1932)Mad. 712 : 65 M.L.J. 364 can be reconciled with the 'ratio decidendi' of the Full Bench which came later, it would certainly apply to the present case. But when we compare the cases we find that it is precisely the argument which was accepted in justification of the decision in Lakshmindra Tirta Szvamiyar v. The President, the Board of Commissioners, H.R.E., Madras I.L.R. (1932)Mad. 712 : 65 M.L.J. 364 which was carefully examined and rejected in the Fuji Bench case. To adopt the language of Jackson, J., at page 290 of the Full Bench case 'since it. is conceded that the decision is a decree in all respects except that it is not made 'in a suit', the ultimate point for determination is whether such a proceeding is a suit.'
21. The arguments on this point in the Full Bench case were as follows: - It was contended on one side that the application was a plaint because it complied with all the requirements of the plaint under Order 7, Rule 1 and the proceedings a suit, and on the other that it was not a plaint and the proceedings not a suit. To quote Jackson, J. again 'the question reduces itself to a very narrow compass. Can a pleading be considered in law a plaint in spite of the fact that by the local statute it is styled an application?'
22. All the three Judges answered this in the negative, Madhavan Nair, J., who wrote the leading Judgment, and Lakshmana Rao, J., giving elaborate reasons, and Jackson, J., saying that while the point was arguable it was better 'Stare decisis' and to affirm the decision in Appeal No. 44 of 1931.
23. Some of the reasons given by the other two learned Judges may be noted. Both begin by referring to Venkata Chandrappa Nayanivaru v. Venkatratna Reddi I.L.R. (1898) Mad. 256, as authority that a proceeding that does not commence with a plaint is not a suit, and both reject the contention that an application is a plaint merely because it contains all the requisites required by Order 7, Rule 1. Both point out that in defining a decree the Civil Procedure Code has recognised the distinction between a proceeding commenced by an application and one commenced by a plaint, and by way of illustration quote Order 33, where the proceedings do not become suits instituted in the ordinary manner till the application to sue in forma pauperis is granted, and they also point out that an order rejecting the application to sue in forma pauperis is only an order and not a decree.
24. Both point out that under the Hindu Religious Endowments Act 'applications' and 'suits' are treated as distinct remedies for aggrieved persons. Remedy by suit is provided for in Sections 55(4), 57(3), 57(4), 63(4), 65, 67(5), and 73 and remedy by application in Sections 44, 62, 70(2), 76(2), 77(2), 78 and 84(2).
25. Lakshmana Rao, J., further points out 'It is also apparent from Schedule II which describes the proceeding under Section 84, Clause (2) as an application and prescribes the Court-fee as that leviable on a plaint under Article 17 of the Madras Court Fees Amendment Act of 1922, that the distinction between a plaint and an application was kept in view, and it would be against sound rules of construction to treat an application under Section 84(2), as, or deem it, a plaint. Applications under this section are not really suits though they are analogous to them, vide Damodaran v. The Hindu Religious Endowments Board, Madras I.L.R. (1929)Mad. 266, (269) : 58 M.L.J. 494
26. If we turn to Sch. II we find that the same argument applies to an application under Section 44.
27. Both the learned Judges consider the cases quoted to support the argument that proceedings in which the rights of parties are determined may be termed a suit and distinguish them.
28. As regards the Privy Council cases The Secretary of State for India in Council v. Chelikani Rama Rao they point out that they were determined under the Procedure Code of 1882 under which a decree meant 'the formal expression of an adjudication upon any right claimed, or defence setup in a Civil Court when such adjudication, so far as regards the Court expressing it, decides the suit or appeal.' So an adjudication which decides an appeal would be a decree under the old Code but not under the new and the cases referred to were appeals from decisions in appeal.
29. Madhavan Nair, J. finds that the decision of our own Court relied on The Secretary of State for India v. Narayana-sivamy Chettiar I.L.R. (1931)Mad. 391 did not apply for similar reasons.
30. He also points out that the decision of the Calcutta High Court Hurro Chunder Roy Chowdhry v. Shoorodhonee Debia (1868) 9 W.R. (Civ.) 402, on which Devadoss, J. relied in Mahalinga Kudumban v. Theetharappa Mudaliar (1928) 56 M.L.J. 387 was under the old Code in which there was no provision corresponding to Section 26 of the new Code, and also that the judgment in the Calcutta case itself indicates that that decision could be supported on narrower grounds, and Lakshmana Rao, J., says he is unable to agree with the view taken in Mahalinga Kudumban v. Theetharappa Mudaliar (1928) 56 M.L.J. 387 by DevaSoss, J.
31. So it is clear that the Full Bench have rested their decision entirely on the fact that proceedings under the Religious Endowments Act, which begin with an application, cannot be deemed a suit and consequently the definition of 'decree' in Section 2(2), Civil Procedure Code will not apply to the adjudication order in these proceedings.
32. Now if we turn to Lakshmindra Tirta Swamiyar v. The President, Board of Commissioners, H.R.E., Madras I.L.R. (1932) Mad. 712 : 65 M.L.J. 364 we find that it was exactly that point that was in question when deciding whether an order in execution fell under Section 47, Civil Procedure Code. The learned Judges say:
It would be contrary to the spirit of the provision conferring on the Civil Court the power to execute, to construe the word 'suit' in Section 47 in its literal and strict sense. We must hold that the words in Section 70 of the Madras Hindu Religious Endowments Act 'as if a decree had been passed' attract to the order the whole procedure in execution and the right of appeal provided under Section 47 of the Code of Civil Procedure.
33. In that case it may be noted that what was contended for was that, owing to want of proper notice, the order of the Board could not operate as a decree. The real contention therefore put forward on behalf of those who were maintaining that an appeal lay was that there was no decree at all.
34. Possibly the decision in that case was correct on such basis, but the argument that proceedings begun by an application under the Hindu Religious Endowments Act can be treated as a suit, and for that reason the adjudication on them is a decree has been repelled by the Full Bench decision. There may of course be orders which a Court has to execute 'as if they were decrees' though the orders themselves are not appealable and are not those of the Court. Such a case is mentioned in the Bench judgment itself where the words in Section 40 of the Revenue Recovery Act, 1864 which runs 'as if the purchased lands had been decreed to the purchaser' were held in Gnana Sambanda Pandara Sannadhi v. David Nadar : (1904)14MLJ433 to place the purchaser in the position of a decree-holder and therefore entitled to such remedies as are open to decree-holders.
35. In Mathura Prasad v. Sheobalak Ram I.L.R. (1917) All. 89 it was held that an order of a liquidator purporting to be passed under Section 42(b) of the Co-operative Societies Act and taken to the Civil Court to be enforced under Section 42(5)(a), even if wrong, had to be enforced by the Court which had no option but to do so.
36. We have not even here to decide whether an order passed in execution is appealable for what is under appeal is the original order itself which it is contended was 'the decree in suit' and if that is to be appealed against it must be under Section 96 of the Civil Procedure Code read with the definition of a decree, Section 2(2). The Full Bench judgment is conclusive that the application which began the present proceedings was not a plaint, hence the order on it was not one passed in a suit, and therefore not a decree within the meaning of Section 2(2). The preliminary point must therefore be allowed and the appeals and Memo of objections dismissed with costs of respondents 1 to 3 in 417 and first Respondent in 418. The respondents 4, 7 and 8 in Appeal No. 417 will pay the costs of respondents 1-3 in the Memo of objections.