YEGNARAMA DIKSHADAR Vs. GOPALA PATTAR

JUDGEMENT

(1.) The ease made in the plaint was that the villagers, including the plaintiffs and defendants, are the owners and Uraliars or managers of the suit temple situated in their village, that is to say, that it was a private endowment; and this was not contested on the other? side. Dealing with, the ease on this footing we agree with the lower Courts , and the learned Judges, in holding that the villagers, acting by a majority, were entitled to make the reference to arbitration, Exhibit A, for the purpose of settling a scheme of management and that the award made by the arbitrators, Exhibit B, was afterwards properly filed under Section 526 of the Code of Civil Procedure, the 116 Urallars who joined in the petition being entered as plaintiffs and the 46 counter-petitioners being entered as defendants, and thereupon became enforceable as a decree. The order, Exhibit C, recites that some of the counter-petitioners had withdrawn their objections and that some had been removed from the record so that the petition was not. opposed.

(2.) Assuming that this is to be treated as a consent decree by virtue of the original agreement to refer to arbitration, the next question, as to which the learned Judges have differed, is whether the villagers, acting by a- majority, validly set aside the provisions of the award as regards the management of the temple. Mr. Ramachandra Aiyar contended that they could not, relying on the decision of the Privy Council in Ramanathan Chetii v. Murugappa Chetti 29 M. 288 : 10 C.W.N. 825 : 83 I.A. 139 : 1 M.L.T. 327 : 3 A.L.J. 707 : 4 C.L.J. 189 : 16 M.L.J. 265 : 8 Bom. L.R. 98 (P.C.), which does not appear to have been cited before the learned Judges. It was held in that case that an agreement between several branches of a family as to the management by the various branches of "a private endowment belonging to the family must hold good until altered by the Court or superseded by a new scheme effected with the concurrence of all parties interested. In this case there is the further objection that the award has acquired the force of a decree. The scheme of the management sanctioned by the decree does not provide for any alterations being made by the majority of the villagers, and I do not think that any such provision can be read into it. It is now well settled that a oonsent deoree cannot be set aside by the consent of the parties. In The Bellcairn (1885) 10 P.D. 161 at p. 165 : 55 L.J.P. 3 : 53 L.T. 686 : 34 W.R. 65 Lord Esher, M.R. observed: "When, at a trial, the Court gives judgment by consent of the parties, it is a binding judgment of the Court and cannot beset aside by a subsequent agreement between the solicitors, or the parties even though it be planed in the form of an order by consent on a summons and taken to a Registrar or Master and by him made as a matter of course. It is only the Court, with full knowledge of all the facts on which it is nailed on to act, which can set aside the 6rst judgment." And in Huddersfield Banking Company v. Lister (1895) 2 Ch. 273 at p. 280 : 64 L.J. Ch 523 : 12 R. 331 : 72 L.T. 703 : 43 W.R. 567, in which the grounds on which the Court would set aside a consent decree or order were considered, Lindley, L.J., observed: A consent order, I agree, is an order and, so long as it stands, it must be, treated as such, and so long as it stands ...it is as good an estoppel as any other order. I have not the slightest doubt on it". In the present case the respondents, if they wished to modify the scheme in the award, should have filed a suit for that purpose, I, therefore, would allow the appeal and remand the case to the lower Court for disposal according to law. Costs to abide.

(3.) I have already said that it is not the case of any of the parties to the suit that this is a public endowment. In Appu Pattar v. Kurumba Bhagavati 11 Ind. Cas. 633 : 21 M.L.J. 588, where such a case was not raised in the pleadings or issues, but the lower Courts went into it and the lower Appellate Court found that the endowment was a public One, this Court set aside he finding as at variance with the case disclosed by the plaint. I think this was the proper course to take, and-that we should not be justified in raising such an issue now. The public are in no way represented in this suit, there is no one on the record to assert their rights, and those rights cannot be in any way affected by the decision in: this case. Sadasiva Aiyar, J.