RANGANATHA THATHACHARIAR Vs. KRISHNASWAMI THATHACHARIAR AND NINE ORS

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 A.S. No. 212 of 1909 (on the file of the High Court) for the management of one of the Conjeeveram temples. That petition was presented on the assumption that a vacancy had occurred among the trustees under the scheme and that as it has not been filled by either of the two agencies primarily responsible for filling 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 vacancy 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 Court's 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 and 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 Goundan V/s. Muthu Velappa Goundar which was followed in Venkatarama Aiyar V/s. Janab V. Hamid Sultan Maracayar 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 procedure to be followed in the Court's exercise of the power conferred by the scheme is not specified therein, the applicability of its ordinary judicial procedure must be presumed and also, as follows from National Telephone Company, Limited, V/s. Postmaster General [1913] A.C. 546 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. Vasudeva Ayyar (1917) I.L.R. 40 Mad. 793 (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 thereunder 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.