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Sivan Pillai and anr. Vs. T.S. Venkateswara Ayyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1926Mad130
AppellantSivan Pillai and anr.
RespondentT.S. Venkateswara Ayyar
Cases ReferredBhogilal v. The Dakore Temple Committee
Excerpt:
- - more than twice 7 years bad passed, when the matter came up again before the district judge of tinnevelly in november 1924. at that time, there was a mahazar dated 16bh december, 1922, signed by several villagers asking the court to approve of the nomination of venkatarama aiyar. he seems to have failed to appreciate that under the scheme, it was necessary to have a nomination by the villagers and an approval by the court before any trustee could be appointed or his term renewed. the order that is now complained against comes within the scope of that ruling......the appeal, there is a preliminary objection that no appeal' will lie. in the light of the recent privy council decision in bhogilal v. the dakore temple committee , and the decisions of this court in lokasikhamani mudaliar v. thiagaroya chettiar (1917) 5 l.w. 596 and ranganadha v. krishnaswamy a.i.r. 1924 mad. 369, i am of opinion that an appeal will not lie against the order made by a court, as in this case exercising a power given to it by a provision in the schsme and that such an order is not an order made in execution. in prayaga doss jee varu v. tirumala purisa srirangacharyulu (1908) 31 had. 406, there is an observation that the order to be made by a district court, in that case appointing a treasurer in a scheme of management of a devasthanam, should be considered as an order.....
Judgment:

Spencer, J.

1. The revised decree in this scheme suit as passed on March 16th, 1906, by the learned Distsrict Judge of Tinnevelly (now Mr. Justice Phillips) provided that the trustee should hold office for a term of 7 years renewable at the will of the villagers and the Court, New trustees ware to hold office upon nomination by the villagers of Thiruvannathapuram and Thimmarajapuram, subject to the approval of the District Court. More than twice 7 years bad passed, when the matter came up again before the District Judge of Tinnevelly in November 1924. At that time, there was a mahazar dated 16bh December, 1922, signed by several villagers asking the Court to approve of the nomination of Venkatarama Aiyar. There was another mahazar dated 15th February, 1923, asking the Court to appoint. Venkateswara Aiyar, the trustee hitherto in office. While that was pending, the present petitioner and appellant, Sivan Pillai who claimed to have an interest in the trust, filed a petition supporting the candidature of Venkateswara Aiyar, The District Judge dismissed the petition and from his order this is an appeal or a revision. So far as the records show, the District) Judge was in error in stating that the 4th respondent was to be treated as holding office for the third term. He seems to have failed to appreciate that under the scheme, it was necessary to have a nomination by the villagers and an approval by the Court before any trustee could be appointed or his term renewed. The District Judge might have called upon the villagers to make a nomination of the person considered by the villagers to be the most fit to be appointed as a trustee upon the expiry of the term of Venkateswara Aiyar, and if the nomination so made by them had his approval, he might have appointed the nominee. It does not appear whether there was any such nomination and confirmation. But the District Judge made an order disposing of the petitions of Venkatarama Aiyar and of Sivan Pillai. The petition of the former was that the present trustee should be removed. That request could not be granted by the District Judge upon a petition of this nature. For the removal of a trustee, it would be necessary to bring a separate suit, in the absence of any provision in the scheme for his removal. Upon Sivan Pillai's [i.e., petitioner's] petition, it is not clear what order the District Judge could have made other than to dismiss it, as it was not competent. The scheme does not provide for independent petitions being put in to support the candidature of various claimants for the office of trustee, As the District Judge has not acted without jurisdiction or committed any material irregularity in his order dismissing the petition, we cannot interfere in revision.

2. As regards the appeal, there is a preliminary objection that no appeal' will lie. In the light of the recent Privy Council decision in Bhogilal v. The Dakore Temple Committee , and the decisions of this Court in Lokasikhamani Mudaliar v. Thiagaroya Chettiar (1917) 5 L.W. 596 and Ranganadha v. Krishnaswamy A.I.R. 1924 Mad. 369, I am of opinion that an appeal will not lie against the order made by a Court, as in this case exercising a power given to it by a provision in the schsme and that such an order is not an order made in execution. In Prayaga Doss Jee Varu v. Tirumala Purisa Srirangacharyulu (1908) 31 Had. 406, there is an observation that the order to be made by a District Court, in that case appointing a treasurer in a scheme of management of a Devasthanam, should be considered as an order made in execution. But, in view of the decision of the Privy Council to which I have referred, I do not think we are bound by that observation which was made with reference to the circumstances of the particular scheme concerned in that case. The appeal and the revision petition are dismissed. As the District Judge's order was some what ambiguous, there will be no order as to costs.

Madhavau Nair, J.

3. I entirely agree with the order proposed by my learned brother. I will just say a few words only about the preliminary objection. In view of the decision of the Privy Council in Bhogilal v. The Dakore Temple Committee , I think it must be held that the order is not subject to appeal under Section 47, Civil Procedure Code. In that case, it was held by the Privy Council, that an ordar passed by the District Judge affirming or disaffirming the rules made by a committee of management in pursuance of directions in a scheme settled by it, cannot be made the subject-matter of an appeal under Section 47, Civil Procedure Code. The order that is now complained against comes within the scope of that ruling. In this order, the learned District Judge refused to accept the nomination by the villagers of one Venkatarama Aiyar in pursuance of a 'scheme' settled under Section 92, Civil Procedure Code and treated the present trustee as continuing in the office. Mr. T.M. Krishnaswami Aiyar who appears for the appellant has sought to distinguish the Privy Council case, on the ground, that what their Lordships stated in that case amounted to this only, namely, that applications with regard to the scheme decree settled in that case should have been made to the Privy Council, as the scheme decree was one finally passed by the Privy Council.

4. I cannot accept this argument. There is no justification for such a contention in the judgment itself. The argument involves the assumption that the Privy Council decree is still not a final and complete decree, that the Privy Council should be considered to have given directions to the District Court to frame rules and to submit the District Court's recommendations and that it is for the Privy Council to pass orders after receiving such recommendations from the District Court. Such an argument was put forward in Prayaga Doss Jee Varu v. Tirumala Purisa Srirangacharyulu (1908) 31 Had. 406 and it is thus met by the learned Judges who overruled that argument. ' It is true that their Lordships have statutory authority to make references under Section 17 of the Privy Council Act, 3 and 4 Will. IV, Chap. 41 in which case the referee, would have to report to their Lordships, and the case, would be adjourned pending the receipt of the report as in Hutchinson v. Gillespie (1856) 11 Ex. 798, but in the present case, it is, we think, clear from the judgment and the order that their Lordships did not intend to make any such reference but disposed of the appeal finally, leaving the directions contained in their judgment to be executed in the usual manner.' I think similar observations may be made in this case also with reference to the suggestion mada by Mr. T.M. Krishnaswami Aiyar.

5. This Court has already held in a decision in Logasikhamani Mudaliar v. Thiagaroya Chettiar (1917) 5 L.W. 596 which was followed in Ranganadha v. Krishnaswamy A.I.R. 1924 Mad. 369 that directions given effect to under the provisions of the soheme cannot be made the subject-matter of an appeal under Section 47, Civil Procedure Code. See also the unreported decision in Vythilinga Mudaliar v. Mahadeva Aiyar Civil Rev. Petition No. 645 of 1924. Two decisions, vis.:- Ponnambala Tambiran v. Sivagnana Desika (1894) 17 Mad. 343 and Prayagadoss Jee Varu v. Tirumala Purisa Srirangacharyulu (1908) 31 Had. 406 have been relied upon by the learned Vakil for the appellant in support of his argument. It may be pointed out that the proceedings referred to in the decision in Ponnambala Tambiran v. Sivagnana Desika Gnana Sambandha Pandara Sannadhi (1894) 17 Mad. 343 did not relate to any scheme which was settled by the Court under Section 92, Civil Procedure Code and therefore that decision is not obviously applicable. As regards Prayaga Doss Jee Varu v. Tirumala Pursia Srirangacharyulu (1908) 31 Had. 406 I agree with my learned brother in thinking that, after the Privy Council decision in Bhogilal v. The Dakore Temple Committee , it cannot be relied upon as an authority to show that the order in this case is appealable under Section 47, Civil Procedure Code.


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