LAMBODAR DHONDDEO DEO Vs. DHARANIDHAR GANESH DEO

JUDGEMENT

(1.) In Appeal No. 71 of 1886 from original decree, the High Court framed a scheme for the management of the Chinchwad Saushtan including the Devasthans of Morgaum, Sidhatek and Theur. Under Clause 2 of that scheme, one of the trustees referred to in Clause 1 was to be selected from among the descendants of Shri Narayan Maharaj, the eldest son of Shri Chintaman Dev, to represent the eldest branch of the family; one was to be selected from among the descendants of Shri Chintaman Dev generally, and the third was to be selected entirely according to the discretion of the District Judge of Poona. The District Judge was to nominate the trustees after ascertaining from the members of the family, or in such other manner as he might deem desirable, who were eligible to act as such trustees, and what were their respective qualifications.

(2.) We are concerned in this case with the selection or nomination by the District Judge of Poona of a trustee from amongst the descendants of Shri Narayan Maharaj in consequence of a Vacancy having arisen. There were twelve candidates for the post, and the Judge said, after carefully considering their qualifications, that he had decided to appoint Applicant No. 7 to fill the vacancy.

(3.) Three of the disappointed applicants, Nos. 1, 2 and 6, have filed appeals in this Court, and the first question that arise is whether an appeal lies to this Court. At appeal can only lie if the order of the District Judge can be said to be an order in execution, and there fore appealable as a decree under Section 47. Section 47 says : "All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit." It was contended that an application would be made to the District Judge of Poona to select a trustee by way of execution, but we are of opinion that clearly the District Judge is a persona designate under the scheme which expressly mentioned the District Judge as the person to select the trustees under Clause 2 of the scheme. Under Section 100 of the Code "an appeal lies to the High Court from every decree passed in appeal by any Court subordinate to the High Court," so that the order passed by the District Judge is not an order of the District Court of Poona, but an order of the District Judge. Consequently, no appeal would lie under Section 47 read with Section 2 and Section 100.