THUSHTU BALAKRISHNA CHETTIAR (DEAD) Vs. VKRISHNAMURTHI AIYAR

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 Cf. Syatna Charan V/s. Satya Prasad (1922) 36 CLJ 101. 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 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.

(3.) 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 misappropriation of the temple funds. In Saminatha Pillai V/s. Sundaresa Pillai (1920) 14 LW 238 (FB)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 Nathu Mal V/s. Kishori Lal Singh (1925) 28 IC 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 cf. Upadhyayulu Yegnanarayana, V/s. Kota Lanka Makayya (1915) MWN 914. followed in Rangachariar V/s. Souri Battachariar (1916) 33 IC 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 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 guess. 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.