M RUNGANATHA THATHACHARIAR Vs. KRISHNASWAMI THATHACHARIAR

JUDGEMENT

(1.) This appeal is against an order passed by the Subordinate Judge's Court, Chingleput, on a petition presented to it under clause 10 of the scheme sanctioned by the decree in Appeal Suit No. 212 of 1909 for the management of one of the Conjeevaram temples. That petition was presented on the assumption that a vacancy had occurred among the trustees Under the scheme and that, as it had not been filled by either of the two agencies primarily responsible for filing it, the lower Court must, in accordance with the scheme, do so. The lower Court held after enquiry that the point disputed before it, a vancancy had occurred and directed that it should be filled in the manner provided by the rules framed by the High Court. No more need be said to show that there is no question of failure on the part of the lower Court to exercise jurisdiction or of interference with its action by way of revision. The question is then only of interference, as we are asked to interfere in the exercise of our appellate powers; and we have accordingly to decide whether an appeal against the lower Courts disposal lies, respondents contending that it does not.

(2.) That, it is conceded, depends first on whether the position of the District Court under the scheme, clause 10, is that of a persona designata; not of a Court, which will, in case its order is appealable under any appropriate provision of law, be subject to our appellate jurisdiction. The test to be applied has been considered fully in a recent decision, Ramaswami. Gounder v. Muthu Velappa Gounder 71 Ind. Cas. 1039 : 44 M.L.J. 1 : 16 L.W. 848 : (1923) M.W.N. 133 : (1923) A.I.R. (M) 192 : 46 M. 536, which was followed in Venkatarama Ayyar V/s. Janab Hamid. Sultan Maracayar Sahib Bahadur 70 Ind. Cas. 987 : 44 M.L.J. 161 : (1923) M.W.N. 78 : 32 M.L.T. 114 : 17 L.W. 656 : (1923) A.I.R. (M) 360, and there is no necessity to add anything to that statement of the law, except that no distinction can be drawn between the interpretation of an Act, which was then in question and that of the scheme before us. There is, accordingly, first, the consideration that, as the precedure to be followed in the Court's exercise of the power conferred by the scheme, is not specified therein, the applicability both of its ordinary judicial procedure must be presumed and also, as follows from National Telephone v. Postmaster General (1913) A.C. 546 : 82 L.J.K.B. 1197 : 100 : L.T. 562 : 57 S.J. 661 : 29 T.L.R. 637, of the law relating to appeals from its ordinary decisions. And, next, when in accordance with the course taken by the Privy Council in Balakrishna Udayar V/s. Vasudeva Aiyar 40 Ind. Cas. 650 : 40 M. 793 : 15 A.L.J. 645 : 2 P.L.W. 101 : 33 M.L.J. 69 : 26 C.L.J. 143 : 19 Bom. L.R. 715 : (1917) M.W.N. 628 : 6 L.W. 501 : 22 C.W.N. 50 : 11 Bur. L.T. 48 : 44 I.A. 261 (P.C.), we refer to the position occupied by the Court under clauses of the scheme, other than that now under construction, for instance, clauses 13, 48 and 61, and find that its functions there under are clearly judicial, we must take the same view of the function with which we are now concerned.

(3.) If, however, the Court was in this matter acting judicially, it is still, as respondents contend, necessary to see whether its order was one, against which under the ordinary law an appeal will lie, and that, it is not disputed, depends on whether its order was a decree within the meaning of Section 2 (2) of the Civil P. C., or more particularly, whether it was the determination under Section 47 of a question relating to the execution of a decree. That it was so is alleged on the short ground that the order was passed to give effect to the scheme and that the scheme was prescribed in and is part of the decree. But, first, that takes no account of the requirement of the latter Section that the question determined shall be one arising between the parties to the suit or their representatives. For in the present case of the parties to the lower Court's order, some at least, respondents Nos. 5 to 8, were impleaded only in their capacity as members of the Board of Supervision, which was created only under the decree in Original Suit No. 11 of 1907, and, of them 6, 7 and 8 respondents were certainly not parties in any sense and were not even connected with the community, to which the plaintiffs therein belonged or with them, even in the representative capacity, in which they sued on behalf of the Thathachar family. And, generally, it is clear that this requirement of Section 47 cannot be regarded as necessarily fulfilled by every Court's order made under the scheme; for, it is obvious that this would not be so in the case of an order under clause 48 or clause 61, for the removal from office of a person, who until his appointment had had no connection with the institution and was a stranger to the suit.