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M. Runganatha Thathachariar Vs. Krishnaswami Thathachariar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in75Ind.Cas.189
AppellantM. Runganatha Thathachariar
RespondentKrishnaswami Thathachariar and ors.
Cases ReferredPrayag Doss Ji Varu Mahant v. Srirangacharlalvaru
Excerpt:
civil procedure code (act v of 1908), sections 2(2), 47, 92--scheme - application for further relief under scheme, whether application in execution--appeal. - .....on a petition presented to it under clause 10 of the scheme sanctioned by the decree in appeal suit no. 212 of 1909 for the management of one of the conjeevaram temples. that petition was presented on the assumption that a vacancy had occurred among the trustees under the scheme and that, as it had not been filled by either of the two agencies primarily responsible for filing it, the lower court must, in accordance with the scheme, do so. the lower court held after enquiry that the point disputed before it, a vancancy had occurred and directed that it should be filled in the manner provided by the rules framed by the high court. no more need be said to show that there is no question of failure on the part of the lower court to exercise jurisdiction or of interference with its.....
Judgment:

Francis Oldfield, J.

1. This appeal is against an order passed by the Subordinate Judge's Court, Chingleput, on a petition presented to it under clause 10 of the scheme sanctioned by the decree in Appeal Suit No. 212 of 1909 for the management of one of the Conjeevaram temples. That petition was presented on the assumption that a vacancy had occurred among the trustees Under the scheme and that, as it had not been filled by either of the two agencies primarily responsible for filing it, the lower Court must, in accordance with the scheme, do so. The lower Court held after enquiry that the point disputed before it, a vancancy had occurred and directed that it should be filled in the manner provided by the rules framed by the High Court. No more need be said to show that there is no question of failure on the part of the lower Court to exercise jurisdiction or of interference with its action by way of revision. The question is then only of interference, as we are asked to interfere in the exercise of our appellate powers; and we have accordingly to decide whether an appeal against the lower Courts disposal lies, respondents contending that it does not.

2. That, it is conceded, depends first on whether the position of the District Court under the scheme, clause 10, is that of a persona designata; not of a Court, which will, in case its order is appealable under any appropriate provision of law, be subject to our appellate jurisdiction. The test to be applied has been considered fully in a recent decision, Ramaswami. Gounder v. Muthu Velappa Gounder : AIR1923Mad192 , which was followed in Venkatarama Ayyar v. Janab Hamid. Sultan Maracayar Sahib Bahadur : AIR1923Mad360 , and there is no necessity to add anything to that statement of the law, except that no distinction can be drawn between the interpretation of an Act, which was then in question and that of the scheme before us. There is, accordingly, first, the consideration that, as the precedure to be followed in the Court's exercise of the power conferred by the scheme, is not specified therein, the applicability both of its ordinary judicial procedure must be presumed and also, as follows from National Telephone v. Postmaster General (1913) A.C. 546 : 82 L.J.K.B. 1197 : 100 L.T. 562 : 57 S.J. 661 : 29 T.L.R. 637, of the law relating to appeals from its ordinary decisions. And, next, when in accordance with the course taken by the Privy Council in Balakrishna Udayar v. Vasudeva Aiyar 40 Ind. Cas. 650 : 40 M. 793 : 15 A.L.J. 645 : 2 P.L.W. 101 : 33 M.L.J. 69 : 26 C.L.J. 143 : 19 Bom. L.R. 715 : (1917) M.W.N. 628 : 6 L.W. 501 : 22 C.W.N. 50 : 11 Bur. L.T. 48 : 44 I.A. 261, we refer to the position occupied by the Court under clauses of the scheme, other than that now under construction, for instance, clauses 13, 48 and 61, and find that its functions there under are clearly judicial, we must take the same view of the function with which we are now concerned.

3. If, however, the Court was in this matter acting judicially, it is still, as respondents contend, necessary to see whether its order was one, against which under the ordinary law an appeal will lie, and that, it is not disputed, depends on whether its order was a decree within the meaning of Section 2 (2) of the Code of Civil Procedure, or more particularly, whether it was the determination under Section 47 of a question relating to the execution of a decree. That it was so is alleged on the short ground that the order was passed to give effect to the scheme and that the scheme was prescribed in and is part of the decree. But, first, that takes no account of the requirement of the latter Section that the question determined shall be one arising between the parties to the suit or their representatives. For in the present case of the parties to the lower Court's order, some at least, respondents Nos. 5 to 8, were impleaded only in their capacity as members of the Board of Supervision, which was created only under the decree in Original Suit No. 11 of 1907, and, of them 6, 7 and 8th respondents were certainly not parties in any sense and were not even connected with the community, to which the plaintiffs therein belonged or with them, even in the representative capacity, in which they sued on behalf of the Thathachar family. And, generally, it is clear that this requirement of Section 47 cannot be regarded as necessarily fulfilled by every Court's order made under the scheme; for, it is obvious that this would not be so in the case of an order under clause 48 or clause 61, for the removal from office of a person, who until his appointment had had no connection with the institution and was a stranger to the suit.

4. There is, moreover, further and equally substantial objection to the appellant's contention that the question determined by the lower Court does not relate to the execution of a decree. for the relief asked for in Original Suit No. 11 of 1907 was simply the framing of a scheme; and, when that had been done in the decree passed, there was no further relief asked for or granted, in respect of which execution could be taken out. That having been the scope of the suit and the decree, there is no ground for the suggestion, which in fact appellant's contention involves, that the decree anomalously must be regarded as executable in perpetuity on every occasion on which a deviation from the scheme is alleged. True, the scheme provides for the Court's intervention on such occasions. But to assume that it will interve e by way of execution will be to beg the question in issue; and it is material that there is no such explicit provision for enforcement of the scheme in execution as was contemplated in a case to be referred to, Frayag Doss Ji Varu Mahant v. Tirumala Srirangacharlavaru 28 M. 319 : 15 M.L.J. 133, the only provision for future control over the trust being general in clause 64 for the making of rules by the District Court and in clause 65 for the modification by the High Court of the scheme itself.

5. It is useless, in view of the distinctive characteristics of the Indian Law of Religious Endowments and Indian Procedure relating to execution, to refer to English practice or decisions. Appellant relies first on the decision just referred to, as enunciating the general principle, that directions in a scheme can be enforced in execution by persons interested; but the preceding and succeeding context makes it clear that the Court was really only formulating a provision in the scheme it was framing. Damodarbhat v.Bhogilal 24 B. 45 : 1 Bom. L.R. 509 : 12 Ind. Dec. 567, referred to in the de ision just noticed, is no doubt in appellant's favour, to the extent that the Court was prepared to treat persons,who had been parties to the decree and who failed to submit accounts in accordance, with the schemes prescribed in it, as in contempt, and to compel them to do so by imprisonment or attachment of their property. But this authority was merely mentioned and distinguished in Lokasikhamani Mudaliar v. Thiagaroya Chettiar 38 Ind. Cas. 415 : (1917) M.W.N. 420 : 5 L.W. 596, and it does not seem to have ever been followed. It is, moreover, material that in it, as appears from Damodar Bhatji v. Bhat Bhogilal Kasandas 22 B 493 : 11 Ind. Dec. 910, the taking of accounts was a relief asked for specifically in the suit and granted independently of the framing of a scheme in the Court of first instance, and as there is nothing to show that this part of the decree was altered in appeal, that fact may afford an explanat on for the High Court's conclusion. Here, when the relief asked for and granted was the scheme alone, there is no reason for holding that the further remedy provided in the scheme need or can be asked for, in execution of the decree, or that the order granting or refusing it is appealable, as one passed under Section 47.

6. On the ground that no appeal lies, the appeal must be dismissed with costs.

Venkatasubba Rao, J.

7. I entirely agree.

8. When a suit is instituted, in the words of Section 92, Civil Procedure Code, to obtain a decree setting a scheme and a decree is passed embodying a scheme, the relief sought, must, so far as the suit is concerned, be regarded to have been finally given and there remains nothing to obtain. by way of execution. In a suit for money the decree directs payment of it by the defendant to the plaintiff. To realise the money, it may be necessary to execute the decree. Similarly, in suits for specific moveables, for recovery of immoveable property, to enforce specific performance of a contract, etc., what is awarded by the decree has Order to be realised in execution. But where the relief asked is that a scheme may be settled by the decree and a seeme has been so settled by the decree, the plaintiffs have obtained all that they have asked and the scheme that is, framed by the Court is similar in this respect to a scheme settled out of Court, or a scheme contained in a Will or an instrument, which has made the dedication.

9. The argument that the application in question was an application in execution, was possible because the particular clause in the scheme under which the application was made, directed an application to the Court and the Court is denned in the scheme as either the Subordinate Court having jurisdiction over the temple, or the District Court of Chingleput. But most of the clauses in the scheme make no reference to the Court at all. And, can it be contended with any show of reason that the provisions of those clauses can be enforced in execution of the decree? for instance, clause 25 of the scheme provides that the trustees shall annually before a certain date prepare a budget for the following year. In the preparation of the budget, he trustees are directed to have regard to the custom of the Institution. If the budget is not prepared, or, in the preparation of it, the custom is disregarded, is the remedy to be by way of execution of the decree? The dereliction or noncompliance may occur fifty or hundred years after the passing of the decree. Clause 42 says that the treasurer shall not keep with him more than Rs. 2,000 in cash. If he disobeys this direction, how can it be enforced in execution? Clause 54 gain provides that the opinion of the Board of Supervision shall be determined by the majority of its members. If the Board on any particular occasion gives effect to the view of the minority, I fail to see how th relief can be got in execution. Dealing with the last mentioned instances, it is obvious that neither the treasurer nor the members of the Board may happen to be parties to the suit; most likely they may not. It is impossible to, conceive how an execution application lies.

10. The Court to which the application in question was made happens to be the Court which has jurisdiction to execute the decree passed in the suit. But this is a mere accident. The scheme might have provided that the application was to be made to another Court, a Court not, having jurisdiction to execute the decree. As a matter of fact, clause 63 of the scheme provides for an application to the High Court of Madras for disposal of surplus funds and similarly, clause 65 contemplates an application also to the High Court for the modification of the scheme. Surely if such applications are made, by no stretch of imagination can they be described as execution applications.

11. Now, turning to authority, the only case which may seem to support the contention of the appellant is Damodar Bhat v. Bhogilal 24 B. 45 : 1 Bom. L.R. 509 : 12 Ind. Dec. 567. But I think it may be distinguished in the manner suggested by my learned brother. If, however, the case can be said to decide that a decree settling a scheme may be executed, I respectfully dissent from it Prayag Doss Ji Varu Mahant v. Srirangacharlavaru 28 M. 319 : 15 M.L.J. 133 does no more than merely cite Damodar Bhat v. Bhogilal 24 B. 45 : 1 Bom. L.R. 509 : 12 Ind. Dec. 567. The question did not arise and the Court was merely concerned with the actual terns of the scheme to be sanctioned. Some reliance was next placed upon Swaminatha Mudaliar v. Kumaraswami Chettiar 72 Ind. Cas. 284 : 44 M.L.J. 282 : (1923) M.W.N. 239 : 17 L.W. 422 : 32 M.L.T. 212 : A.I.R (1923) (M) 472 decided by Spencer, J., and myself. The question that arose was whether a decree could be executed by persons other than those on the record. In holding that it could be, we merely reproduced an observation occurring in the judgment in Prayag Doss Ji Varu Mahant v. Srirangacharlalvaru 28 M. 319 : 15 M.L.J. 133 to the effect that persons interested (that is, other than those who are on the record) may enforce in execution the directions in a scheme. We were dealing with the question as to who could execute a decree and we held that persons not parties to the suit could also execute It. We were concerned only with the first words of the sentence we quoted and we did not intend to decide (and of course there was no occasion for it) whether or not a scheme decree is capable or execution.

12. I also agree that the Court exercised Its powers as a Court of law and not as a persona designata. but the appeal was filed and justified on the footing that the order related to execution and could be questioned In appeal Under Section 47, Civil Procedure Code, and we were not asked, to interfere with the order in the exercise of our powers of revision or of superintendence.

13. With these observations, I agree that the appeal should be dismissed with costs.


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