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Vythilinga Pandarasannadhi, Trustee Kattalai, Kamalalayam South Bank Vs. the Board of Control, Sri Thiagarajaswami Devasthanam, Represented by Its New President, G. Ranganatha Mudaliar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1932Mad193; 136Ind.Cas.771; (1931)61MLJ904
AppellantVythilinga Pandarasannadhi, Trustee Kattalai, Kamalalayam South Bank
RespondentThe Board of Control, Sri Thiagarajaswami Devasthanam, Represented by Its New President, G. Ranganat
Cases ReferredNiladri Saku v. Mahant Chaturbhuj Dap
Excerpt:
- - under clause (13) of the scheme the trustees of the respective kattalais were directed to hand over all the cash proceeds of their property to their treasurer who had to keep them in a safe within the temple premises, enter them in a book to be kept with separate pages for each kattalai for that purpose and furnish the trustees with receipts for the same and be responsible for their safe custody, and the treasurer was directed to put the trustees in funds from the amounts in his hands to their respective credits whenever they apply for disbursements according to the budget. the learned advocate for the appellant argued that the appointment of a receiver is a mode of equitable execution under the english law and referred to english authorities to show that it cannot be justified in..........the court will have perpetually to superintend the affairs of the kattalais. in the first instance we may limit the period to two years. if the subordinate judge is satisfied at the end of this period with the conduct of the; trustees, or, if the present trustee is removed, after his removal, the receiver may be discharged, or the term of the! receiver may be extended from time to time.5. subject to this modification the appeals are dismissed with costs.
Judgment:

Ramesam, J.

1. These are appeals under Section 47 of the Code of Civil Procedure against the orders of the Subordinate Judge of Negapatam in E.A. Nos. 11 and 84 of 1930 in O.S. No. 125 of 1921 which was a suit filed for the framing of a scheme for the temple of Sri Thiagarajaswami at Tiruvarur in East Tanjore District. The matter came up to the High Court before Spencer, J. and myself and a scheme was framed. Under Clause (8) of the scheme the trustee of each Kattalai was directed to submit a budget to the treasurer of his expected receipts and expenditure and the treasurer was directed to consolidate the budgets of all the Kattalais and place them before the Board for their approval and orders. Under Clause (13) of the scheme the trustees of the respective Kattalais were directed to hand over all the cash proceeds of their property to their treasurer who had to keep them in a safe within the temple premises, enter them in a book to be kept with separate pages for each Kattalai for that purpose and furnish the trustees with receipts for the same and be responsible for their safe custody, and the treasurer was directed to put the trustees in funds from the amounts in his hands to their respective credits whenever they apply for disbursements according to the budget. In pursuance of the scheme the President of the: Board of Control insisted on the trustees of the Kattalais sending complete budgets of receipts and expenditure and on their failing to do so he applied for attachment of their property or their arrest. The Subordinate Judge dismissed the petition. There was an appeal to the High Court. That appeal came on before this Bench and it was held on an objection that the: decree in the original suit was not an executable one, that the directions in Clauses (8) and (13) of the scheme were executable: and not merely declaratory. Our judgment was reported in Ratnanatham Chettiar v. Balayee Ammal (1927) 27 L.W. 32. The present application is by the Board of Control acting through their President for the appointment of a receiver for the properties under the control of 12th defendant who is the trustee of Abisheka and Annadhanr. Kattalais for the purpose of carrying out the duties which the trustees have to perform under Clauses (8), (13) and (16) of the scheme, alleging default on the part of the trustees in regard to their duties. The petitions were actually pressed before the Subordinate judge in respect of only Clause (13). The complaint made against the trustee is that he had persistently not been making remittances, nor sending accounts, showing collections from Fasli 1338 downwards. The Subordinate Judge found that the appellant was guilty of continuous and persistent defiance not only of the directions in the scheme to make remittances of money collections but also the orders of Court made from time to time and that he paid only a small portion of the money received by him. In paragraph 6 of the judgment there is a table showing the actual income and remittances to the treasurer. The appellant admitted on 2nd September, 1929, that he received a sum of nearly Rs. 5,000 between 29th March and 23rd August, 1929, but did not remit it to the treasurer and spent it himself. Other defaults are mentioned by the Subordinate Judge in the same paragraph. Similar complaints were made in 1928 and also in 1929. Nothing further was done on the ground that an undertaking was given by him (vide Exs. E and E-l). In the present petition he was required to produce all the accounts. He has not done so. The Board of Control made a rule that he should send monthly budgets, but this was not done. Accordingly the Subordinate Judge appointed a receiver. It is against this order that the present appeals are filed.

2. In appeal the point strenuously pressed is that the appointment of of receiver is not a proper remedy, on various technical grounds. First, it is argued that the Board of Control was not a party to the decree it was a creation of the decree itself and could not be a party; therefore it cannot be a decree-holder and cannot execute the decree. The reply to this argument is that a decree-holder need not be a party to the decree. It is enough if the decree confers some right enforceable under the decree upon some persons mentioned in it. The right of calling upon the trustees to remit the collections is conferred upon the Board of Control. The Board may therefore be regarded as a decree-holder. Vide Varadaiah Chetti v. Narasimhulu Chetti (1930) 60 M.L.J. 173 and cases cited therein. The decision in Sivaram Dubai v. Rajagopala Misra I.L.R. (1930) 54 M. 315 : 60 M.L.J. 514 does not help the appellant, as it did not relate to a matter in execution. We have already held in Ramanatham Chettiar v. Balayee. Animal (1927) 27 L.W. 32 that these clauses of the scheme may be regarded as executable. The decision in Ranganatha Thathachariar v. Krishnaswami Thathachariar I.L.R. (1923) 47 M. 139 and Veerappa v. Padmanabha : AIR1929Mad625 are distinguishable as the applications in those cases related not to matters in execution but to other matters.

3. It is then argued that the proper method of compelling the trustee of Annadhana and Abisheka Kattalais to obey the directions in the scheme is by attaching the property or arresting him and not appointing a receiver. It may be that attachment of property and arrest of the judgment-debtor are two modes of enforcing obedience by the judgment-debtor to the directions in the decree. But in the present case the object of the application is not only to compel obedience on the part of the judgment-debtor but also to obtain the collections made on behalf of the Kattalais, and to ensure the production of accounts as regards collections. The learned Advocate for the appellant argued that the appointment of a receiver is a mode of equitable execution under the English Law and referred to English authorities to show that it cannot be justified in circumstances like these. We have nothing to do with those authorities. Even in England a wider discretion is conferred upon Courts by the Judicature Act; but in practice even under the Judicature Act the Court would appoint receivers only in cases where these could have been appointed prior to the Act. But under the Civil Procedure Code we are not restricted by considerations of this kind. According to Section 51, Civil Procedure Code, one of the modes of obtaining execution is by the appointment of a receiver and under Order 40, Rule 1, Civil Procedure Code, a receiver can be appointed wherever it is just and convenient, and it is provided that a receiver shall not be appointed so as 'to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.' This proviso clearly refers to a case where the person in possession is a third party and the parties to the suit have no present right to disturb him. This was the view taken by Sadasiva Aiyar, J. in Kumaraswami Pillai v. Pasupathia Pillai (1920) 12 L.W. 254. We agree with that view. Where the dispute is between parties to the suit, if it is just and convenient for the purpose of enforcing or carrying out the directions in the decree, we think a receiver can be appointed even where the party in possession is not liable to be removed. It is true that in the present case the Board of Control has no right to remove the trustees. Their petition was not for the purpose of removing the trustees but for the purpose of compelling them to carry out the duties according to the scheme. This has been held to be intra vires in Veeraraghavachariar v. The Advocate-General of Madras I.L.R. (1927) 51 M. 31 : 53 M.L.J. 792. The effect of the present order of the Subordinate Judge is not the removal of the trustee. Defendant 12, who is the trustee of Annadhanam and Abishekam Kattalais, will continue to discharge his duties as trustee in all other matters untouched by this order. He will settle the budgets, obtain disbursements from the treasurer and incur the expenditure necessary for the carrying out of the Kattalais. Only in the matter of collecting the income and remitting the cash collections to the treasurer a receiver is appointed to attend to these duties. As will appear lower down, this order must necessarily be of a temporary character and does not amount to a permanent dispossession of the trustee. In a suit brought by a mortgagee against a mortgagor for the purpose of obtaining a mortgage amount where the property belongs to a mutt and a sale is considered not desirable, a receiver was appointed for the purpose of collecting the income of the mortgage property and paying the amount due to the mortgagee. Vibhudapriya v. Lakshmindra . A similar order was passed in Niladri Saku v. Mahant Chaturbhuj Dap . We do not see therefore any objection to the appointment of a receiver in this case for the purpose of ensuring remittances of the collections from the properties of the two Kattalais to the Board of Control. On the merits we do not see any reason why we should disturb the order of the Subordinate Judge having regard to the persistent conduct of the trustee in question.

4. As I have observed, it is not desirable that a receiver should be appointed permanently. There should be some time-limit; otherwise the Court will have perpetually to superintend the affairs of the Kattalais. In the first instance we may limit the period to two years. If the Subordinate Judge is satisfied at the end of this period with the conduct of the; trustees, or, if the present trustee is removed, after his removal, the receiver may be discharged, or the term of the! receiver may be extended from time to time.

5. Subject to this modification the appeals are dismissed with costs.


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