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Majeti Antayya Vs. Lingmbhotla Venkata Ramayya - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in95Ind.Cas.5
AppellantMajeti Antayya
RespondentLingmbhotla Venkata Ramayya
Cases Referred and Krishniengar v. Viraraghavathachariar
Excerpt:
.....the special provisions contained in section 17(3) of the securitisation act. the statutory scheme of the securitisation act is such that the borrower could take recourse to application under section 17 only if one or other measure is taken by the secured creditor, and the tribunal can restore the status quo ante only if it comes to the conclusion that any of the measure taken by the secured creditor is not in accordance with the provisions of the act. the scheme cannot be bypassed by issuing a mandatory order for redelivery of the possession before conclusion of the proceedings under section 17--sections 17, 13 (4); [a.p.shah, c.j., f.m. ibrahim kalifulia &v. ramasubramanian, jj] scope of enquiry under section 17 held, the main purpose of the securitisation act, and in..........lower court not having jurisdiction to pass this order in execration, the civil revision petition must be allowed and the application dismissed with costs throughout.3. a further question was raised that the provision in the scheme for application to the court for directions was ultra vires but in the view we take of this case, it is not necessary to consider that question.
Judgment:

1. In this case, a scheme was framed in respect of the suit trust and under the scheme permission was given to apply to the Court for directions for the proper management of the institution. The respondents who are the archakas of the temple, have filed this petition praying for payment of the salaries to which they are entitled under the provisions of the scheme. It has now been finally decided by the Privy Council in Sevak Jeranchod Bhogilal v. Dakore Temple Committee that applications of this nature do not come under Section 47 of the C.P.C. Consequently, no appeal lies and the appeal filed here must be dismissed.

2. There remains to be considered what are the rights of the parties under the civil revision petition which has also been filed, and undoubtedly, that petition raises a question of jurisdiction, for it is contended that the Court had no jurisdiction to order execution of the decree containing the scheme. That this argument has considerable force is clear from the very form of the lower Court's order, which purports to order execution. In effect, the lower Court merely repeats in its present order the direction given in the scheme, namely, that the arehakas should be paid a certain amount of money. The Court has apparently assumed jurisdiction on the ground that it has power to direct the trustee as an officer of the Court to make certain payments. No doubt when the Receiver appointed by the Court was performing the duties of trustee, he was an officer of the Court but when ones his office ended, the duties fell upon the proper trustee, who is in no sense an officer of the Court. That reason, therefore, for ordering payment cannot be sustained and if we consider the provision in the scheme, it is clear that it cannot be enforced by this petition for there is no means of compelling the trustee to pay the money. There is no application for arrest or attachment and it is very doubtful whether such an application could possibly lie in the present case. The point has been considered in Janakirama Reddi v. Thiruvenkada Ramanuja Chari 2 M.L.T. 94 and Krishniengar v. Viraraghavathachariar 30 Ind. Cas. 771: 2 L.W. 607 in both of which cases, it was held that the decree must be regarded merely as declaratory. No doubt, in both those cases, the application was for compelling the performance of certain ceremonials and it was held that that could not be done. This case, though not a strong, must fall in the same category, for there is no means of enforcing the order of the Court. The petitioners must be left to a separate remedy either by way of suit or possibly by proceedings against the trustee for breach of trust. The lower Court not having jurisdiction to pass this order in execration, the civil revision petition must be allowed and the application dismissed with costs throughout.

3. A further question was raised that the provision in the scheme for application to the Court for directions was ultra vires but in the view we take of this case, it is not necessary to consider that question.


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