( 215 )
Present: Bertram C.J. and De Sampayo J.SATHASIVAM et at. m VAITHIANATHAN et at.
151—D. C. Colombo. 2fl02.
Appointment of receiver—Action In respect of a charitable trust—TrustsOrdinance, No. 9 of 1917, s. 202—CmZ Procedure Code, s. 671,
An action brought in respect of a religious charitable trust undersection 102 of the Trusts Ordinance, No. 9 of 1917, is subject to thegeneral provisions of the Civil Procedure Code, and it is competentto the Court to appoint a receiver in respect of the trust propertyunder section 671 of the Civil Procedure Code.
fJ^HE facts appear from the judgment.
A. St. V. Jayawardene, K.C. (with him Keuneman and SpencerRajaratnam), for appellants.—Section 102 of the Trusts Ordinanceis not exhaustive as regards the remedies available in respect of trustproperties. All actions under the Ordinance are governed by the 1
1 (1916) 8 0. W.R. 77.
( 216 )
1922.rote® relating to civil procedure, section 116, Ordinance No. 9 of 1917,
Safharimm an(^ se°ii^on 671> Civil Procedure Code, gives the remedy to have av. VaUhiana- receiver appointed to safeguard the trust property penderUe lite.
*A°nAppellants, as members of the congregation, are entitled to have a
receiver appointed. They need hot necessarily have a right to theimmediate possession of the property in question. It was held inGktnesh Tambekar v. Ldkhminan Qovindram1 that persons interestedin the maintenance of a religions trust are entitled to have areceiver appointed to protect the trust property. This was affirmedby the Privy Council (24 I. L. R. Bom. 50). The affidavit of the^appellants discloses a jmm& facie case, which is not at all rebuttedby the affidavit of the respondents. So a second chance should notbe given to them to traverse the facts, but an order appointing areceiver-could be immediately made. The selection of the personmay be left- to the District Judge.
' Arulanandan (with him Retnam), for defendants, respondents.—The defendants, respondents, are in. a position to disprove all thematerial allegations in the plaintiffs’ affidavit and have not doneso, as they relied on a matter of law. If the case goes back to theDistrict Court, the defendants ought to he given an opportunity ofdisproving the allegations. In the absence of our affidavit, it isimpossible for the Supreme Court to decide the question of thenecessity for appointing a receiver. The trial is fixed a few dayshence, and it may be that it will be quite unnecessary to decide thequestion of appointing a receiver.
Jaymoardene] in reply.
January 20,1922. Bertram C.J.—
This is an appeal against an order of the District Judge ofColombo refusing to appoint a receiver in an action brought inrelation to a religious charitable trust under section 102 of theTrusts Ordinance, No. 9 of 1917. The learned Judge, though anaffidavit alleging extensive facts was put before him, decided theapplication on grounds of law. The first ground was that section102 of the Trusts Ordinance does not provide for the appointmentof receivers ; and the second was, or at any rate it seems to havebeen, that chapter L. of the Civil Procedure Code has no applicationto the present case, because the plaintiffs have not a right to theimmediate possession of the particular property in respect of whichthe application was made, or a vested interest in it sufficient toentitle them to have it protected. The learned Judge bases thelatter ground upon a previous decision of this Court (Seyadoris v.Hendrick*).
It seems to me that the grounds on which the learned Judgebases his judgment are mistaken. It does not matter that nothing
1 (1888) 121. LJR. Bom. 247.
*18. G. B. 358 end 2 O. L. R. 167.
( 217 )
is said about an appointment of a receiver in section 102 of theTrusts Ordinance. Any action instituted under that section issubject to the general provisions of the Civil Procedure Code (seeseotion 116 of the Ordinance itself). Further, the learned Judgeappears to have misconstrued section 671 of the Civil ProoedureCode. The action relates to property subject to the trust, and theplaintiffs have every right, if they establish their facts, to theremedy which the section provides for.
There is only one other point. Mr. A. St. V. J&yaw&rdenecontends that in deciding this matter all that we should have regardto is the affidavit filed in the case. He says, as I understand him,that we ourselves are competent to appoint a receiver upon thesefacts, or that, if the matter is remitted to the District Judge, heshould be restricted to the facts disclosed in the affidavit in comingto a decision. Certainly, 1 do not understand the procedureadopted in the case; nor do I understand why the facts allegedwere not traversed. 1 cannot believe that it was the intention ofthe defendants to admit these foots, because if they had done so,they would have in fact admitted the whole cause of action of theplaintiffs. In any case I think that the learned Judge, beforegranting an order of this description, ought to investigate the factsto 6ee whether so exceptional a remedy is really required. In myopinion the case should go back to him for that purpose. It maywell be that one of the circumstances he will take into account willbe the fact that the action is fixed for hearing within a very fewdays, and it may not be convenient to go into the allegations of theaffidavit separately. On the other hand, there is an advantagem an interim order of this deerripfcion. Supposing the learnedJudge grants the prayer of the plaintiffs and an appeal is taken,in the present condition of the work of this Court that appeal couldnet come on for hearing until about nine months after judgment.Whereas if he makes sn interlocutory order, and if an appeal istaken, that appeal will be beard within a very short interval. Thelearned Judge wiU., doubtless, when he hears the ease, keep thecircumstances in mind, if he finds facts established, that call forimmediate action. The twspondeats having chosen to rest theircase on a point ol law in the Court below, and having failed, must,I think, pay the costs of the appellants on this appeal and the costsin the Court below of the hearing of the application.
Db Sampayo J.—I agree.
SATHASIVAM et al. v. VAITHIANATHAN et al