THUSHTU BALAKRISHNA CHETTIAR Vs. VKRISHNAMURTHI IYER

JUDGEMENT

(1.) The facts are set out in the judgment of my learned brother which I have had the advantage of reading and I, therefore, need not repeat them here.

(2.) The first point taken in this appeal against the judgment of the Subordinate Judge of Tanjore is that the decree is merely declaratory and, therefore, not executable in that no act is to be done [of Syama Charan Das V/s. Satya Prosad Choudhury 70 Ind. Cas. 427 : 36 C.L.J. 101 : A.I.R. 1923 Cal. 252.] The decree says "that this Court doth order and direct that the 1 defendant shall be liable to make good to the temple Rs. 2,774 and odd and that failing recovery thereof from him, defendants Nos. 6 and 7 be liable to make good the deficiency and also Rs. 338 and the 7 defendant liable to make good to the temple Rs. 60." It is to be observed that the words order and direct appear in the decree but some argument has ranged round the words shall be liable to make good. The suit was a suit under Section 92, Civil Procedure Code, and prayed inter alia that the defendants be directed to render accounts of their management of the plaint temple for the last 12 years and for their removal as trustees. The plaintiff clearly charged the defendants with non-maintenance of accounts, improper use of the money and mis-appropriation of the temple funds. In Saminatha Pillai V/s. Sundaresa Pillai 62 Ind. Cas. 911 : 14 L.W. 238 : 29 M.L.T. 267 a Full Bench of this Court held that if the relief is claimed as to amount of misappropriation but the amount is not ascertained and would have to be determined by enquiry in the suit, this brings the case within the mischief of Section 92(d), Civil Procedure Code. In Nathumal V/s. Kishori Lal Singh 28 Ind. Cas. 886 a decision of the Allahabad High Court, the learned Judges held that the provisions of Section 92 are wide enough to entitle the Court to direct an account against a trustee and to make an order on him to pay the amount found to be due on the taking of those accounts. So it seems to me there is ample authority for saying that a decree passed under Section 92 may order the defendant to pay the amount as may be found due from him. I said that some argument had been addressed to us on the words "shall be liable to make good." There is authority for saying that, if the decree is ambiguous, the judgment may be consulted and the decree construed in the light of the plaint and judgment [of. Upadhayayulu Yegnanarayana v. Kottalanka Makayya 31 Ind. Cas. 478 : (1915) M.W.N. 914 followed in Rangachariar V/s. Souri Bhattachariar 33 Ind. Cas. 561 both decisions of this Court.] The judgment finds that a certain sum has to be accounted for by the 1 defendant and the learned Subordinate Judge directs that the 1 defendant shall make good to the temple Rs. 2,774 and odd and defendants Nos. 6 and 7 shall make good to the temple, etc. Why the drafting clerk in drawing up the decree introduced the words "be liable to" one cannot gue Secs.But in any case it seems to me the intention is clear enough that the defendants found liable shall pay the various sums to the temple for which they are found responsible. It seems to me, therefore, that this first point must fail.

(3.) The second contention is that this security bond as to which execution proceedings have been taken and which is really the subject of the appeal ought not to have been accepted by the Court and that it is in fact ultra vires. The argument is that this taking of security must be governed by Order XLI, Rules 5 and 6 in that the decree was under appeal at the time the security was offered and accepted. An argument of this sort comes with the worst possible grace from the appellant who has himself offered security in order to stay execution proceedings instituted against the 1 defendant. Rules 5 and 6 of Order XLI lay down that an appeal shall not operate as a stay of proceedings and further Rules 5(2) and 6 appear to be inapplicable because the appeal time here had expired and there is no question here of any order for sale. Order XLI, Rules 6(1) does not in terms apply, nor need we consider Rules 5(3) and (4). The argument further overlooks the provisions of Order XX, Rule 11(2) which provides for a matter of consent of this sort. The Privy Council in Sadasiva Pillai V/s. Ramalinga Pillai 2 I.A. 219 at p. 232 : 24 W.R. 193 : 15 B.L.R. 383 : 3 Sar. P.C.J. 519 : 3 Suth. P.C.J. 190 (P.C.) a case similar to this, said that they were not clear that the contention that only the Appellate Court was competent to grant a stay was well-founded. They did not discuss this in detail as the point had not been taken in appeal. Lakshmana V/s. Sukiya Bai 7 M. 400 : 2 Ind. Dec. (N.S.) 862 appears to me to be quite clear. The case in Sadasiva Pillai V/s. Ramalinga Pillai 2 I.A. 219 at p. 232 : 24 W.R. 193 : 15 B.L.R. 383 : 3 Sar. P.C.J. 519 : 3 Suth. P.C.J. 190 (P.C.) referred above was followed and the order proceeded on a condition assented to by the decree-holder which the Court approved of and sanctioned. It may also be noticed in connection with the fourth point to be hereafter mentioned that in this case extra interest was also agreed to be paid [of. also Sheo Golam Lall V/s. Beni-prosad 5 C. 27 : 4 Ind. Jur. 409 : 4 C.L.R. 29 : 2 Shome L.R. 182 : 2 Ind. Dec. (N.S.) 629 which points out that the Privy Council in Sadasiva Pillai V/s. Ramalinga Pillai 2 I.A. 219 at p. 232 : 24 W.R. 193 : 15 B.L.R. 383 : 3 Sar. P.C.J. 519 : 3 Suth. P.C.J. 190 (P.C.) allowed execution for mesne profits not specifically included in the decree but in respect of which the defendant had entered into an agreement to account on condition of execution being stayed.] A recent case of our own High Court Subra- mania Pillai V/s. Corera 86 Ind. Cas. 723 : 48 M.L.J. 121 : (1925) M.W.N. 86 : A.I.R. 1925 Mad. 457 held on a similar agreement that the judgment-debtor was estopped. The case of Satya Shankar Ghosal V/s. Maharaj Narain Choudhri 17 Ind. Cas. 728 : 35 A. 119 : 11 A.L.J. 83 quoted by the learned Vakil for the appellant seems to be inapplicable as it refers to a Court having executed a decree and then after such execution having restored the property to the person ejected by it, I am of opinion that this matter of contract falls under Order XX, Rule 11 (2) and that the appellant cannot be heard to say that the matter is ultra vires.