MOHUNT RATAN NARAYAN GIRI Vs. ASHUTOSH NUNDY

JUDGEMENT

(1.) This is an appeal against an order of the learned District Judge of Howrah rejecting an application made by the appellant under the provisions of Order 22, Rule 10, Civil P.C., and a consequential order made on the following day. The suit has been brought by the plaintiffs under the provisions of Section 92, Civil P.C., in connexion with a well known math known as the Bhote Bagan Math in the District of Howrah. After the institution of the suit, the defendant abdicated and the appellant was installed on the Gadi with certain ceremonies. He filed the present application on a case that he has been legally installed and is now the mahant. The learned Judge rejected this claim and further expressed the opinion that, even if the claim were established, the application ought not to be allowed. We have heard interesting arguments on the question whether the appellant is the valid mahant of the math but in the view which we take of the case we expressly refrain from expressing any opinion. Almost as soon as the appeal was opened, it became apparent that there would be the greatest difficulty in allowing the application. The main prayers of the plaintiffs are that the defendant should be removed from office, that he should submit accounts, that a new mahant should be appointed and a scheme framed. The effect of allowing this application would be that the defendant would go out altogether and it would be impossible to try the suit as framed.

(2.) Two reasons were put forward for pressing the claim. It was said that the appellant is interested in securing the appointment. The mere fact that he has been installed as a result of the abdication of the defendant does not give him any higher claim to the appointment than he had before. The learned Judge is certainly entitled to appoint him and will probably do so if he is satisfied that he is the most suitable candidate. But it would be a disastrous thing to hold that the discretion of the learned Judge in the matter could in any way be affected by a voluntary abdication by the defendant pendente lite. The second reason put forward was an apprehension on behalf of the appellant that his claim will be seriously affected if it is not disposed of in the present suit. The question of his claim is entirely irrelevant to the present suit, and I am unable to understand how it could affect his claim. The appellant consented to a certain order upon which two rules were disposed of. It was agreed between him and the plaintiffs that the District Judge would make an inquiry as to his alleged title and that if the alleged title was made out the receiver would be discharged. I do not apprehend that this could in any way support a plea of res judicata. But if it could, the appellant should never have been given his consent. The learned Judge refused to add the appellant as a party on the ground that his object was to alter the scope of the suit. It is much easier to establish a case to be added as a party than a case under Order 22, Rule 10. When the former has failed it would be quite illogical to allow the latter. Finally, it was contended that the appellant is interested in the scheme that is to be settled. He may be so, and if he is, the learned Judge will no doubt pay attention to any submission he desires to make but such interest would in no way depend upon his alleged installation.

(3.) The consequential order is not subject to appeal at all. But inasmuch as it was entirely without jurisdiction, we propose to set it aside in revision. It appears that the learned Judge thought that he was giving effect to the consent order. I am certainly not prepared to say that his discretion would, in any way, be bound by a consent order in a case under Section 92, Civil P.C. But be that as it may, the learned Judge has gone far beyond the scope of the consent order. That order is to the effect that the receiver will remain in possession. The order of the learned Judge is to the effect that a person who is not a party to the suit and who may be either a tenant or a trespasser is to be forcibly ejected from certain rooms. The receiver is undoubtedly the receiver : but if he wishes to obtain vacant possession he must take proper legal steps against the appellant. The appeal is accordingly dismissed. The appellant will pay the costs of the plaintiffs and we assess the hearing fee at four gold mohurs. The defendant will pay his own costs. In the exercise of our powers of revision we set aside the order No. 236 made by the learned Judge on 22nd July, last. Sen, J.