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

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in92Ind.Cas.556
AppellantSivan Pillai and anr.
RespondentT.S. Venkateswara Iyer
Cases ReferredSevak Jeranchod Bhogilal v. Dakore Temple Committee
Excerpt:
civil procedure code (act v of 1908), sections 47, 92 - scheme framed by court--order in pursuance of scheme--appeal, whether lies--trustee, removal of, not provided for in scheme--procedure. - .....the appeal, there is a preliminary objection that no appeal will lie. in the light of the recent privy council decision in sevak jeranchod bhogilal v. dakore temple committee and the decisions of this court in lokasikhamani mudaliar v. thiagaroya chettiar 38 ind. cas. 415 : 5 l.w. 596 : (1917) m.w.n. 420 and runganatha v. krishnaswami 75 ind. cas. 189 : 18 l.w. 237 : (1923) m.w.n. 664 : a.i.r. (1924)(m.) 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 scheme and that such an order is not an order made in execution. in prayaga doss jee varu v. tirumala purisa srirangacharyulu 4 m.l.t. 92 there is an observation that the order to be made by a district court, in that case appointing a.....
Judgment:

Charles Gordon Spencer, J.

1. The revised decree in this scheme suit as passed on March 16th, 1906 by the learned District 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 were to hold office upon nomination by the villagers of Tiruvannathapuram and Timmarajapuram, subject to the approval of the District Court. More than twice 7 years had passed, when the matter came up again before the District Judge of Tinnevelly in November 1924. At that time, there was a mahazar dated 16th December 1922, signed by several villagers asking the Court to approve of the nomination of Venkatarama Iyer. There was another mahazar dated 15th December 1923, asking the Court to appoint Venkateswara Iyer, 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 Venkatarama Iyer. 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 Iyer, 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 Iyer 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., the 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 Sevak Jeranchod Bhogilal v. Dakore Temple Committee and the decisions of this Court in Lokasikhamani Mudaliar v. Thiagaroya Chettiar 38 Ind. Cas. 415 : 5 L.W. 596 : (1917) M.W.N. 420 and Runganatha v. Krishnaswami 75 Ind. Cas. 189 : 18 L.W. 237 : (1923) M.W.N. 664 : A.I.R. (1924)(M.) 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 scheme and that such an order is not an order made in execution. In Prayaga Doss Jee Varu v. Tirumala Purisa Srirangacharyulu 4 M.L.T. 92 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 somewhat ambiguous, there will be no order as to costs.

Madhavan 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 Sevak Jeranchod Bhogilal v. Dakore Temple Committee (1925) M.W.N. 474 : 2 O.W.N. 535 : 41 C.L.J. 628 : 22 L.W. 216 : 27 Bom. L.R. 872 (P.C), I think it must be held that the order is not subject to appeal under Section 47, C.P.C. In that case it was held by the Privy Council that an order 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, C.P.C. 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 Iyer in pursuance of a 'scheme' settled under Section 92, C.P.C, and treated the present trustee as continuing in the office. Mr. T.M. Krishnaswami Iyer 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. 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. Thirumala Purisa Srirangacharyulu 4 M.L.T. 92 and it is thus met by the learned Judges who overruled the 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, Cap. 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 (1838) 2 Moo. P.C. 243 : 12 E.R. 997 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 made by Mr. T.M. Krishnaswami Iyer.

4. This Court has already held in a decision in Lokasikhamani Mudaliar v. Thiagaroya Chettiar 38 Ind. Cas. 415 : 5 L.W. 596 which was followed in Runganatha v. Krishnaswami (1923) M.W.N. 664 : A.I.R.(1924) (M.) 369 that directions given effect to under the provisions of the scheme cannot be made the subject-matter of an appeal under Section 47, C.P.C. See also the unreported decision in Vythilinga Mudaliar v. Mahadeva Iyer in Civil Revision Petition No. 645 of 1924. Two decisions, viz., Ponnambala Tambiran v. Sivaganana Desika Gnana Sambandha Pandara Sannadhi 6 Sar. P.C.J. 434 : 6 Ind. Dec. 238 (P.C) and Prayaga Doss Jee Varu v. Tirumala Purisa Srirangacharyulu 4 M.L.T. 92 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 Sambanda Pandarasannadhi 6 Ind. Dec. 238 (P.C) did not relate to any scheme which was settled by the Court under Section 92, C.P.C and, therefore, that decision is not obviously applicable. As regards Prayaga Doss Jee Varu v. Tirumala Purisa Srirangacharyulu 4 M.L.T. 92 I agree with my learned brother in thinking that after the Privy Council decision in Sevak Jeranchod Bhogilal v. Dakore Temple Committee 22 L.W. 216 : 27 Bom. L.R. 872 it cannot be, relied upon as an authority to show that the order in this case is appealable under Section 47, C.P.C.


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