Walter Salis Schwabe, K.C., C.J.
1. This is an appeal from an order of Kumaraswami Sastri, J., in Chambers on judge's summons to discharge the receiver of certain temple property and to order the receiver to put the hereditary trustee of that temple in possession of properties and documents relating to the temple. The facts are these. A suit was brought asking for a scheme to be framed in relation to the temple, which was tried by Kumaraswami Sastri J., and he in due course gave a decree and framed a scheme. An appeal was lodged against that decree and there was a cross appeal. Before the case came on in appeal, an application was made before Phillips, J. for the appointment of a receiver, there being allegations made that the trustee did not properly account, would not hand over or produce books, and was not behaving as a trustee should behave under the scheme as framed by Kumaraswami Sastri, J., and having heard the application on several occasions with the trustee before him, Phillips, J., ordered that a receiver should be appointed. The appeal then came on and this Court confirmed the order of Kumaraswami Sastri, J., but to some extent, not to a very great extent, modified the scheme as framed by him. The scheme stands in operation as from the date fixed by Mr. Justice Kumaraswami Sastri's order with the modifications decreed by the Court of appeal. After the order in Appeal, this summons was issued and the case was put before the Court solely on the ground that the effect of the order of the Court of appeal was to put an end to the receivership and in the words of the affidavit ' that the receiver became functus officio and automotically ceases to be receiver.' The plaintiff and the receiver, alleging, as I understand, that they were supported by the Advisory Board, opposed this summons and alleged that the trustee was still an unfit person to have control. The matter came before Kumaraswami Sastri, J., again and he decided that the effect of the order of the Court of appeal was ipso facto to discharge the receiver, and declined to go into any question as to whether or not the trustee was a fit person to have charge or to go into the question whether it was advisable in the interest of the temple that the receiver should be continued.
2. In my judgment that is wrong. The order of Phillips, J., was made quite irrespective of there being any appeal. His Jurisdiction to make the order depended on one or two things, either on the scheme then in operation which provided that applications be made to the Court by summons, or by reason of his powers under Order 40, Rule 1 of the Civil Procedure Code which gives the Court power to appoint a receiver of any property whether before or after decree, where it appears to the Court to be just and convenient to do so, and that order continued until it was put an end to. It was not put an end to by the Court of appeal which merely varied the scheme. That being so, this order, in my judgment, is wrong, and this appeal must be allowed with costs. The summons which was taken out before the learned Judge was taken out on entirely wrong grounds and must be dismissed with costs. But 1. wish to make it quite plain that this does not in any way dispose of the real question which both parties say they desire to have decided. It is perfectly open to the trustee, if he is so advised, to take out a fresh summons asking among other things for the discharge of the receiver. It would be open to him on that application to contend that the scheme as framed by the Court of appeal gives ample protection to those interested, and that it is no longer necessary in the facts of this case to have a receiver. It would also be open on that application for the plaintiff, the receiver and the Board, if so advised, to bring any circumstances before the Court as to the conduct of the trustee or otherwise to enable it to arrive at a proper decision on that point. I think that it is unnecessary for me to point out that there are also ample powers under the scheme for the Board or other persons with the consent of the Advocate General to take steps in reference to the conduct of the trustee, it he has been guilty of any misconduct in recent times, as to which we say nothing and express no views.
3. The result is that this appeal should be allowed and the order of Kumaraswami Sastri, J., is set aside with the result that pending any fresh proceedings, the receiver will be reinstated.
4. I agree and have nothing to add.