P V MATHEW Vs. K V THOMAS

JUDGEMENT

(1.) C.M.A. No. 301 of 198J is by defendants 1 to 3 and 7 to 14 from an order appointing a receiver and C. M. A. No. 22 of 1982 is by defendant 1 from another order allowing attachment of his properties before judgment. In view of the common questions involved we propose to deal with the two appeals in a single judgment.

(2.) O. S. No. 4 of 1981 before the 2nd Additional District judge, Ernakulam, out of' which the appeals arise concerns the affairs of the SL John's Orthodox Syrian Church. Paravur Kara. Manak-kunnam. The two plaintiffs and defendants 1 and 3 to 15 are Parishioners of the Church and the 2nd defendant is its Vicar. For the administration of the Church an Executive Committee of which defendant 1 to 15 are the members was elected by the General Body of the Parishioners in 1974 for a term of one year. The 1st defendant is the Kai-karan of the Church then elected. As Vicar the second defendant is the Sec- retary of the Committee. Defendants 1 and 2 as Kaikaran and Vicar are the custodians of the properties of the Church. Although the term of the Committee expired in 1975 there has been no election and the same Committee has been in office since then. The Church is admittedly a public trust of a religious and charitable nature within Section 92, Civil Procedure Code. The two plaintiffs brought the suit on April 8, 1981, to remove the first defendant from management of the Church and defendants 1 to 15 from office and to convene a meeting of the General Body for electing new trustees. They also claimed other reliefs appropriate to Section 92 (1). On the same day as the institution of the suit the plaintiffs filed I. A. No. 469 of 1981, seeking the Court's leave to institute the suit as required by the amended Section 92 (1). On this application the Court passed an order "Interim leave and notice" on April 9, 1981. The plaintiff filed two other applications. I. A. 626 of 1981 for appointing a receiver to administer the properties of the Church and to convene a meeting of the General Body for electing a new Committee and I. A- 1010 of 1981 for attaching the properties of the 1st defendant. The former application was resisted by defendants 1 to 3 and 7 to 14 and the latter by defendant 1. At the hearing of these two applications, apart from challenging them on the merits the defendants objected that no interim relief could be allowed before leave to institute the suit was granted and that as there was only an order of interim leave for which there was no warrant the applications were unsustainable. On this the Court noted that I. A. No. 469 of 1981 was heard and granted on December 7. 1981. The same day by two separate orders which are the subject of these appeals the Court allowed I. A. Nos. 627 and 1010.

(3.) Besides attacking the orders on the merits counsel for the appellants raised a threshold argument that the proceedings were incompetent and lacking in jurisdiction for non-compliance with the mandatory requirements of Section 92 (1). The argument was built on the basis of even contemporaneous with the institution of the suit; leave as required by Section 92 (1) had not been obtained by the plaintiffs and that the interim leave granted on April 9, 1981 could not cure this infraction and save the proceedings. Counsel urged that Section 92 (1) contemplates no provisional or interim leave and that the order of April 9, 1981 by which the Court purported to grant interim leave was totally ineffective. Before considering the merits of the appeals, we shall deal with this basic objection raised by the appellants.