V ADINARAYANA CHETTY Vs. KOPPARAM NARASIMHA CHETTY

JUDGEMENT

(1.) Two worshippers of the Sri Kanyakaparameswari Temple in Wallajah filed a suit O.S. No. 14 of 1913 in the Court of the Subordinate judge, Vellore, praying for the settlement of a scheme for the proper management of the temple and its properties, for the appointment of a lit and proper person as the trustee, for an account by the 1 defendant of his management of the trust properties belonging to the temple, for a direction to the 2nd defendant to hand over the jewels belonging" to the temple to the trustee so appointed and for a direction to the 3rd defendant to hand over the account books relating to the temple and its properties in his possession. It was alleged in the plaint that in consequence of the irregular and improper conduct on the part of the 1 defendant and his supporters the public worship in the temple had ceased to be performed daily. A written statement was filed on behalf of the defendants but the suit was compromised and a compromise decree passed on the 30 November, 1923. By that decree a scheme was settled, approved and annexed to the decree and by that scheme two members of the Komatti caste were to be elected trustees by the majority at a general meeting of the members of the community subject to the confirmation of the Court. Two trustees were duly elected and their election was confirmed by Court on the 26 July, 1924. In the decree there is a direction that either the plaintiffs or the 1 defendant should apply for the appointment of a Commissioner to go into the accounts as between the defendants and the temple and that the newly elected trustees are to take possession of the temple and its properties only on payment to the 1 defendant whatever sum that might be found due by the Commissioner to all or any of the: defendants. In pursuance of this decree the plaintiffs filed a petition C.M.P. No. 107 of 1924 in the Subordinate Judge's Court asking for the appointment of a Commissioner to take the accounts of the defendants and on the 15 March, 1924, by consent a Commissioner was appointed. The Commission was returned on the 18 November, 1924 and both sides having filed objections to the Commissioner's report, the Subordinate Judge gave his decision upon it on the 22nd December, 1924. It was ordered and declared that no amount was due by the temple to any of the defendants and that the 3 defendant owed Rs. 197-2-3 and the 1 defendant Rs. 2,202-5-5 to it and it was further ordered that the 1 defendant was to pay to the temple trustees on behalf of the temple the sum already stated, that the 3 defendant was likewise to pay the sum found due by him and that both the 1 and the 3 defendants were to pay to the temple trustees on behalf of the temple Rs. 140-4-0 being their costs of the petition and finally that the trustees of the temple were to execute the decree on behalf of the temple only on payment of Rs. 217-7-0 being the Court- fee on the amounts decreed. It must be mentioned that endorsed on the back of the final order is "decretal order" and that the learned Subordinate Judge's considered decision is headed "order". The 1 defendant has now filed this Civil Revision Petition against the before-mentioned order of the learned Subordinate Judge.

(2.) Mr. Varadachari on behalf of the respondents to this petition takes the preliminary objection that no Civil Revision Petition lies, because in his submission the order of the learned Subordinate Judge is a "decree" from which there is an appeal and therefore it is not open to the petitioner to come to the High Court by way of revision. For the petitioner it is argued that the proceedings in the learned Subordinate Judge's Court were by way of a petition, that his order was an "order" and not a "decree" and that hence, there being no appeal, the petitioner's only remedy is by way of a revision petition to the High Court. In support of his argument it is pointed out that the application for the appointment of a Commissioner was made by a Civil

(3.) Miscellaneous Petition, that the learned Subordinate Judge's order is headed "Order" and that when the learned Judge's order was drawn up it was drawn up as a decretal order. These things, it is argued, show that it was not a "decree" but merely an "order". It is further contended that in the mofussil such matters as are left over for determination after the decree is (passed such as the appointment of a Commissioner as in this case are usually dealt with on a petition, and that even assuming that such a practice is irregular and the learned Subordinate Judge should not have adopted such a practice, he has done so and delivered an order and that, therefore, the right of the petitioner to come by way of a revision petition cannot be defeated. A number of cases were referred to by the learned Counsel for the petitioner in support of his argument which, to put it shortly, is that where the Court purports to act under a certain provision although not entitled to do so, it must be taken to have assumed its jurisdiction under that provision. One of the cases relied upon is Bilas Singh V/s. King-Emperor , where it was decided that where jurisdiction is usurped by a Court in passing an order against which an appeal would lie if it had been passed with jurisdiction, an appeal against the order could not be defeated on the ground that the order was made without jurisdiction. It must be noted that in that case the action of the Court was to deprive the applicant of his right of appeal. In the present case that is not the position at all. The action of the learned Subordinate Judge in passing the order, if it can be described as an order, does not deprive the petitioner of a remedy. In Khamalsa Bewa V/s. Promotho Nath Roy Chowdhury (1919) 51 I.C. 967 the question was whether the litigant was by excess of jurisdiction deprived of his right to appeal and it was held that he was not. What happened in that case was that a suit was instituted in a Court the presiding officer of which at the time of the institution of the suit had no Small Cause Court powers. It was held nevertheless that an appeal lay to the District Judge. In Karam Nawaz V/s. Runka A.I.R. 1929 Lah. 376 it was held by a single Judge that the right of appeal is determined not by what the Court should have done but what the Court did or purported to do. Another case relied upon is a Full Bench decision of this High Court, namely, Muthiah Chettiar V/s. Lodd Govinddoss Krishnadoss (1921) I.L.R. 44 M. 919 : 41 M.L.J. 316 (F.B.). There an order which purported to be passed under Order 22, Rule 10, Civil Procedure Code, was held to be an appealable order though on the facts the order should not have been passed under that rule. In Abdul Rahiman Saheb V/s. Ganapathi Bhatta (1900) I.L.R. 23 M. 517 : 10 M.L.J. 305 the Judge had no power to pass orders under Section 492, Civil Procedure Code, as regards the issue of an injunction and under Section 503 as regards the appointment of a Receiver and it was held that as orders under both the Secs.were appealable, the High Court was not barred from treating the orders as having been passed thereunder for the purpose of entertaining an appeal against those orders. That again was a perfectly clear case because the Judge had passed an order attaching property, in itself an order seriously affecting the property of a person, and had also appointed a Receiver and neither of those orders could be made without such orders being subject to an appeal. Here again it was the question of whether or not by the adoption of a wrong procedure by a Court the litigant was to be deprived of his remedy. That is not the case here. In Nasir Khan V/s. Itwari (1923) I.L.R. 45 A. 669 it was held that the right of appeal does not depend on what a Court ought to have done but on what it actually did. In that case the Court dismissed an appeal on the merits although it ought to have dismissed it not on the merits but for default of appearance by the appellant. No appeal lay from an order dismissing the appeal for default. The matter is quite shortly dealt with on page 670 in the judgment of the Court as follows: The right of appeal does not depend on what the Court ought to have done but on what it actually did. What it actually did was to pass a decree on the merits. Against such a decree the law allows an appeal. ...The respondent's reasoning would deprive the aggrieved party of the right of appeal just in those cases in which it is most needed.