SWAN J.—Velupillai v. Palanyandy
Present: Gunasekara J. and Swan J.M. T. VELUPILLAI, Appellant, and C. K. PALANYANDYet al., Respondents
S. C. 91 Inty.—D. C. Batticaloa, 817 (Miscellaneous)
Civil Procedure Code, s. 671—' Any parly ”—Appointment of receiver—Powers ofCourt.
Under section 671 of the Civil Procedure Code a defendant may apply toCourt for the appointment of a receiver against a co-defendant.
When a Court makes an order under section 671 it is not confined to theprayer of the applicant. It has jurisdiction to make any order it thinksnecessary for the preservation or better custody or management of the propertyin question.
AjLPPEAL from an order of the District Court. Batticaloa. -C. T. Olegasegarem, for the first defendant appellant.
C. Renganathan, for the second defendant respondent.
No appearance for the plaintiffs respondents.
Our. adv. vult.
October 7, 1952. Swan J.—
This action was instituted by the plaintifFs-respondents who claimedto be regular worshippers of the Sinthayathirai Pillayar Kovil situatedat Veeramunai in the Batticaloa District. They alleged, that it was thecustom to elect two trustees, one from among the worshippers belongingto the Vellala caste and the other from among those of the Seerapathacaste, and that accordingly in September, 1935, the congregation electedthe first defendant-appellant and one S. P. H. Kalikuddy as trustees.They alleged further that upon the death of Kalikuddy the first defendant*appellant in defiance of the custom of appointing trustees and against
SWA2ST J.—Velupillai o. Palanyandy
the wishes of the congregation purported to appoint the second defendant-respondent as his co-trustee. One of the prayers in the plaint was thatthis appointment should be declared null and void. The plaintiffs-respondents also alleged that the first defendant-appellant had neglectedthe temple and misappropriated its income, and they asked that he beremoved from office and required to render an account of the incomeand expenditure of the temple from the year 1935. There was certainother relief claimed in the prayer of the plaint, namely, the election ofnew trustees and the settlement of a scheme of management.
The first defendant-appellant filed answer stating that the temple andits lands had been granted to his ancestors. He denied the manner ofappointment of trustees as set out in the plaint and asserted that he wasa hereditary trustee and functioned as such, and not by virtue of electionby the Vellala members of the congregation. He stated that Kalikuddywas a Vannakku or trustee appointed by the Seerapatha members of thecongregation and that his rights as trustee, as well as the rights ofKalikuddy as co-trustee, were recognized by the Court in D. C. Batticaloa7,963. He denied that he had appointed the second defendant-respondentas trustee. He also denied the allegation of mismanagement and prayedthat the action be dismissed.
The second defendant-respondent filed a separate answer more or lesson the same lines as the answer of the first defendant-appellant. Healleged that he had been elected a trustee by the Seerapatha membersof the congregation ; and made common cause with the first defendant-appellant in denying the charge of mismanagement. He too prayed forthe dismissal of the action.
It is clear that at the stage of filing answer the two defendants wereon good terms. Thereafter, apparently, they fell out, for on September25, 1951, the second defendant-respondent made the application whichis the subject-matter of this appeal. He filed a petition, supported byaffidavit, making the first defendant and the plaintiffs respondentsthereto, and asked the Court to issue an injunction restraining the firstdefendant from selling the leasehold rights of the temple lands for theyear 1951-1952, and praying that the Court should direct one of itsofficers to sell the said leasehold rights by public auction and deposit theproceeds of sale in Court.
The application was substantially for the appointment of a receiver andthere can be no doubt that the first defendant-appellant regarded it assuch, for, in his objections, he categorically states that the petitioner wasnot entitled in law to ask for the appointment of a receiver.
The learned District Judge in allowing the application of the petitionermade the following order :—
" I do noj agree with Mr. Adv. Kanagasunderdm’s contention thatthis is an application for an injunction and is therefore governed bysection S7 of the Courts Ordinance. Accordingly I make order thatthe leasehold rights of the temple properties be sold by the Secretaryof this Court and by nobody else whenever the need prises for suchsale and the money deposited to the credit of this case after deductingexpenses.”
Edirisinghe v. Nanay ahkara
Mr. Olegasegeram for the appellant contends (1) that the Court hadno jurisdiction to make the order and (2) in any event the Court couldnot have made order for the sale of any leasehold rights other than forthe year 1951—1952.
In my opinion the Court was empowered to make the order it made.It was, as I have already stated, substantially an application for theappointment of a receiver. Section 671 of the Civil Procedure Codeprovides that any pa ty who can establish a prima facie interest in theproperty may apply to Court for the appointment of a receiver ; and theCourt should make the appointment if it appears to be necessary interalia for the preservation or better custody or management of the property.The right of the second defendant to function as trustee might bedisputed but there can be no question that he has an interest in theproperty.
As regards the second point made by Mr. Olegasegeram, I do not thinkthe Court exceeded its powers when it made order regarding the sale ofall future rents pending the action. In my opinion when a Corut makesan order under section 671 it is not confined to the prayer of the applicant.It has jurisdiction to make any order it thinks necessary for thepreservation, or better custody or management of the property.
The only other matter urged on behalf of the appellant is that the Courtshould not have directed that the entire proceeds of sale should remainin Court, without any provision for the necessary expenses of the temple.As I read the order of the Court I can see nothing in it to preclude anyparty interested from applying to the Court to direct the Secretary topay out such sums of money as may from time to time be needed for theupkeep and maintenance of the temple.
I would dismiss the appeal with costs.
Gtoasekaka J.—I agree.
M. T. VELUPILLAI, Appellant, and C. K. PALANYANDY et al., Respondents