MUNDANCHERI KOMAN Vs. (THACHANGATH PUTHAN VITTAL) ACHUTHAN NAIR

JUDGEMENT

(1.) IN these petitions for leave to appeal to His Majesty in Council a preliminary objection has been taken that no appeal lies as the order of this Court is in the nature of an interlocutory order and is not final order within the meaning of Section 109, Civil P C. The suit was brought by the plaintiffs under Section 92, Civil P.C. alleging that the suit temples are private temples and that the defendants as trustees were liable to account for alleged breach of trust and asking for the framing of a scheme. The only issue that was tried in the lower Court was whether the suit temples were private temples or public temples and it was found that they were private temples. On appeal to this Court that finding was upset, it being held that the suit temples were public temples. It is contended for the petitioners that the order of the Court was a final adjudication between the parties and finally determined the right of the defendants and therefore it is final within the meaning of Section 109, Civil P.C. ft, no doubt, has the effect of holding that the defendants are not the owners of the temples as private trustees, which was the case set up by them, but that they are trustees of public institutions, but the order has not the effect of making the defendants liable to render account as prayed for unless other facts are proved viz., that: they have been guilty of breach of trust. The finding therefore that the temples, are public temples does not finally dispose of the matter in dispute between the parties. It was held in Tiru Narayana V/s. Gopalaswami [1891] 13 Mad. 349, that, when the validity of an adoption was finally decided and that that finding did not finally dispose of the suit, it was an order which was not appealable to the Privy Council. That case was followed in Venkataranga Rao V/s. Narasimha Rao [1915] 88 Mad. 509 and V. Mangayya v. Venkataramana Murthi [1918] M.W.N. 844. It is contended that that decision has in effect been overruled by the Privy Council in Rahimbhoy Habibbhoy V/s. G.A. Turner [1891] 15 Bom. 155, where it was held that a decree directing the defendant to account to the plaintiff was a final order as there was nothing further to be determined by the parties to make him accountable. The facts of that case are very different from the one before us, where the defendant has not yet been called upon to account because his liability to do so has not been proved.

(2.) THE only case, which supports the petitioner's contention is Sathappa Chetty v. Subramanian Chetty A.I.R. 1922 Mad. 510, in which it is remarked that the case in Ishvargar Budhgar V/s. Caudasama Amarasang [1884] 8 Bom. 548, on which Tiru Narayana v. Gopalaswami [1891] 13 Mad. 349 was based, was not accepted as good law by Lord Hobhouse in Rahim bhoy Habibbhoy V/s. C.A. Turner [1891] 15 Bom. 155, but on a reference to the judgment in that case it appears that Lord Hobhouse made no mention whatever of the case in Mahant Ishvargar Budhgar v Gaudasama Amarasang [1884] 8 Bom. 548, although it had been utilized in the argument for the respondent. THE facts of Ishvargar Budhgar v Caudasama Amarasang [1884] 8 Bom. 548 are entirely different from those of Rahimbhoy Habbibhoy v. C.A. Turner [1891] 15 Bom. 155 and it is difficult to see how it can be said that the latter decision disapproves of the former. In this Court we find that Tiru Narayana V/s. Gopalaswami has been consistently followed and Ishvargar Budhgar V/s. Gaudasama Amarasang on which it relies was referred to and apparently approved in Habbib-un-nissa V/s. Munawar-un-nissa [1903] 25 All. 629 and Ahmad Hussain v Govind Krishna Narain [1911] 83 All. 891 and we are of opinion that this case is governed by the principle there laid down and must refuse to grant leave to appeal, he Civil Miscellaneous Petitions are dismissed with costs. Vakil's fee Rs. 250. THE stay order is cancelled.