GANGARAM GOVIND PASHANKAR Vs. SARDAR KRVINCHURKAR

JUDGEMENT

(1.) These three applications relate to the modification of a scheme which was framed on appeal by this Court. In effect it is the scheme of the Court, and in view of the fact that the scheme itself contains no clause giving liberty to apply for a modification of the scheme, a preliminary objection has been taken to the effect that this Court has no jurisdiction to entertain the applications. The matter is not free from difficulty. In support of the application we have been referred to certain remarks of various learned Judges to the effect that the Court has an inherent jurisdiction to entertain an application of this sort, even though the scheme does not provide for liberty to apply in such a matter. But the difficulty of following those decisions blindly lies in the fact that they do not refer to Order XX, Rule 3, which has the effect of preventing Courts from altering their own decrees except in accordance with the provisions of Section 152 or the rules relating to review; and it cannot be denied that, in so far as a scheme framed by this Court on appeal is in effect a decree of this Court, what we are being asked to do is to alter our decree otherwise than in accordance with the provisions of Section 152 and the provisions for review.

(2.) It is, however, argued that it is within our competence to do so. In England it is undoubtedly the practice of the Courts to modify their own schemes on mere application, even though it may be that the application is in practice made by the Attorney General and the scheme as framed ought to be regarded no less as the decree of the Court than it would be if it were a decree of an Indian Court; and it is also clear that this Court has the powers of the English Courts subject only to such modifications as may be necessary in view of Indian statutory provisions. It is also clear that in India we have to be guided by the Civil Procedure Code, in particular by Order XX, Rule 3, and that in England there is no such statute as the Civil Procedure Code. Nevertheless it cannot be suggested that in England the principles underlying Order XX, Rule 3, relating to the alteration of decrees do not hold good in spite of their not having been reduced to writing, and it follows that, in BO far as the Court of Chancery in England is prepared to act on applications to modify its own schemes, it does so in spite of a principle which is as much applicable to England as it is to India.

(3.) The question then is whether it is open to us to follow the English practice in spite of the existence of Order XX, Rule 3. It is argued that so far as this case is concerned we have at any rate no power to do so, because the scheme which was framed was a scheme framed by this Court only on appeal, and therefore we are to regard ourselves as exercising appellate jurisdiction and as such confined to the powers of a Court of Appeal. But we are unable to see that it makes any difference whether the scheme which we framed was framed on appeal or was framed in the exercise of some other jurisdiction. Whatever may have been the powers under which the original scheme was framed, it remains a scheme of this Court, and the question still is whether this Court can modify it on an application. It is also argued that the suit came to an end with the framing of the scheme (which is certainly correct) and that this Court's functions have therefore ceased. But, as was pointed out by Mr. Justice Broom field in Chandraprasad V/s. Jinabharthi (1930) 33 Bom. L.R. 520, although the suit ought to be regarded as being at an end, any subsequent orders that might be passed in connection with the scheme should be regarded as orders passed in the scheme and not as orders passed in the suit. It was also suggested that applications of this kind ought to be at least discouraged in view of the fact that a suit under Section 92 could be filed provided the consent of the Advocate General were obtained, and that applications of this kind might well be no more than a device to avoid obtaining the consent of the Advocate General. It is pointed out that in England in practice such applications are made by the Attorney General, so that there is no question of avoiding the ordinary procedure, and that that may well be the origin of the English practice, since it makes no difference whether an application is made by the Attorney General or a suit is brought by the Attorney General; in each case the Attorney General sets his seal upon the proceedings. It is, however, equally arguable that once the Advocate General has given his consent to a suit under Section 92, that consent may be deemed to remain with reference to any modifications of the decree that may afterwards be made. After all when the Advocate General gives his consent to a suit under Section 92, what he consents to is not any particular order by the Court but any order that the Court may see fit to make in the suit. All that he has done is to give sanction to the Court's entertaining a matter relating to a charitable trust, which would otherwise not come within the scope of the Court. We do not think that any valid objection to this application can be made on that score.