160-NLR-NLR-V-48-CHINNATHAMBY-et-al.-Appellants-and-SOMASUNDERA-AIYER-et-al.-Respondents.pdf
Chinnathamby v. Somasundera Aiyer. .
515
1947
Present: Howard C J. and Windham 3.
CHINNATHAMBY et ah, Appellants, and SOMASUNDERAAIYER et al., Respondents.
S. C. 74—D. C. Jaffna, 74.
Civil Procedure Code—Resistance to execution of decree—Petition of decree-holder—Section 325—Numbered as plaint under section 327—Must itdisclose cause of action ?—Trusts Ordinance, s. 102—Vesting order—Delivery of trust property.
Plaintiffs obtained an order under section 102 of the Trusts Ordinanceappointing them trustees of a Hindu Temple and vesting the tempora-lities in them. Thereafter the plaintiffs obtained an order against thefirst defendant for delivery of possession of the temporalities to them.Execution of the order was resisted by certain persons who were notparties to the action and who claimed the right to manage the temple.The plaintiffs thereupon filed a petition under section 325 of the CivilProcedure Code and their petition was numbered as a plaint undersection 327. The District Judge dismissed the plaintiffs’ claim on theground that the plaint did not disclose a cause of action.
1 (1389) S3 L. J. Q. B. 450.
516WINDHAM J.—Chinnathamby v. Somasundera Aiyer.
Held, that in proceedings under section 327 of the Civil ProcedureCode what is required to be investigated is the claim and not the right ofthe decree holder. He does not have to show a cause of action. Hisright to maintain the action arises from his decree and the burden ison the claimant to support his claim as against that decree.
Held also, that in a suit under section 102 of the Trusts Ordinancedecrees may be issued frb'm time to time.
Held further, that a decree directing the delivery of trust propertyof a temple to new trustees is executable and not merely declaratory.
^^PPEAL from a judgment ot the District Judge of Jaffna.
H. V. Perera, K.C. (with him G. C. Thambyah and C. Shanmuga-nayagam), for the plaintiffs, appellants.
■S. J. V. Chelvanayagam, K.C. (with him M. M. Kumarakulasingham).for first, second, third, fourth, seventh, ninth, tenth, eleventh andtwelfth defendants, respondents.
N. E. Weerasooria, K.C. (with him M. M. Kumarakulasingham), forfifth, sixth and eighth defendants, respondents.
Cur. adv. vult.
October 2, 1947. Windham J.—
The plaintiffs-appellants, who are persons interested in a place ofworship known as the Kumpalavalai Pillaiyar Temple, after due com-pliance with the provisions of section 102 of the Trusts Ordinance,instituted an action No. 72 Trust in the District Court of Jaffna againstthe first and second defendants-respondents. The action was settledbetween the parties, and judgment by consent was entered, whereunderthe Temple was declared to be a public charitable trust. In accordancewith the terms of the settlement, a scheme of management was framed,trustees of the temple and its temporalities were duly elected, theirappointment confirmed by the Court, and on October 20, 1943, a vestingorder was made vesting the temple and its temporalities in them. Thisvesting order, which was attached to the decree of the Court as schedule 2,and was expressed to form part of that decree, contained the followingclause: —
“ Further the trustees thus appointed are hereby authorised to takeall necessary steps according to law to take charge and possession ofthe said temple and properties and temporalities and collect incomesderived from all sources as aforesaid and to act in terms of the saidscheme of management confirmed by this Court and to eject partiestherefrom ”.
On February 18, 1944, in pursuance of the above provisions of the vestingorder, the plaintiffs obtained from the Court an ex parte order as againstthe first defendant-respondent for delivery of possession of the templeand its properties to the trustees. Since the second defendant washimself a trustee, the order obviously was not and could not be issuedagainst him ; but the first defendant was not a trustee and, while underthe settlement he was to be allowed to continue as officiating priestduring his lifetime, the order was thus properly issued against him.
WINDHAM J.—Chinnathamby v. Somasundera Aiyer.517
Upon the Fiscal proceeding to execute the order, however, he met withresistance from the fifth and sixth respondents, who had not been partiesto the action, but who claimed the right of officiating as priests and ofmanaging the temple under a deed of June 18, 1943, said to have beenexecuted in their favour by their mother, the eighth respondent.
The plaintiffs accordingly filed a petition against the present respond-ents, including those three, under section 325 of the Civil Procedure Code,and in accordance with the provisions of section 327 their petition wasduly registered as a plaint. Issues were framed, and among these werefive issues, Nos. 9 to 13, in the nature of preliminary objections to theplaint. They were in the following terms : —
“ (9) Does the plaint disclose a cause of action ?
On the footing of the allegations in the plaint do the plaintiffshave the status or right to maintain this action ?
Is the plaintiffs’ action bad for want of compliance with theprovisions of section 101 and/or 102 of the Trusts Ordinance ?
Is the plaintiffs’ action bad for misjoinder of parties and causes of
action ?
Is the plaintiffs’ action bad for non-joinder of parties, viz., of all
trustees as plaintiffs ? ”
The learned District Judge proceeded to consider these five issues aspreliminary objections to the plaint, and, finding against the plaintiffs onissues 9 and 10, he proceeded to dismiss the plaintiffs’ claims forthwith,without going into the merits of the respondents’ claim. It is againstthis that the present appeal is directed.
Now section 327 of the Civil Procedure Code requires the petitioner’s(plaintiffs’) petition of complaint to be “ numbered and registered as aplaint in an action between the decree-holder as plaintiff and the claimantas respondent,” and it further requires the Court to “ proceed toinvestigate the claim in the same manner and with the like power as if anaction for the property had been instituted by the decree-holder againstthe claimant.” But these words, though no doubt they require theinvestigation to be treated as if it were a “ fresh action ” (and on thatpoint I concur with what was said in Fernando v. Fernando ’) cannotin my view reasonably be construed as placing the plaintiff—the decree-holder—in the position of having to comply with all the technical require-ments of the Civil Procedure Code, non-compliance with which mightprove fatal to an actual fresh action brought by him. Nor is there anyquestion of his having to show a “ cause of action ”. It is sufficient thathe is the holder of^ decree for the possession of the immovable property.Section 327 merely says that the claim shall be investigated as if it werean action by the decree-holder against the claimant. But it is the claim(i.e., the case of the person offering resistance to the decree) which isrequired to be investigated, and not the decree-holder’s own right. Forhe holds the decree, and the onus is on the claimant to support his claimas against that decree. Accordingly I think the learned Judge of theDistrict Court erred in dismissing the plaint on issues 9 and 10, i.e., on the
1 (192$) gi N. L. R. at p. 505.
518WINDHAM J.—Chinnathamby v. Somasundera Aiyer.
ground that the plaintiffs had no cause of action or had no right tomaintain their action. The very decree which they held gave themthat right.
Mr. Chelvanayagam for the respondents has not seriously contestedin principle the interpretation which I have placed on section 327. Buthis contention is that the plaintiffs had no right to avail themselves at allof the procedure laid down in sections 325 to 327, in that they were notthe holders of a possessory decree. It was largely on this ground thatthe Court found against the plaintiffs on issues 9 and 10. Now it is truethat the procedure prescribed in those sections is only available, inrespect of immovable property, to the holder of a decree directing aperson against whom it operates to yield up possession of the immovableproperty ; the decree must fall within the category set out in paragraph
of section 217 of the Civil Procedure Code. But it seems to me thatthe decree in the present case did fall within that category. It authorisesthe trustees to “ take all necessary steps according to law to take chargeand possession of the said temple and properties and temporalities
…. and to eject parties therefrom ”. Of the two defendants
to the action in which this decree was obtained, the “ party ” againstwhom it was directed was clearly the first defendant, for the reasons towhich I have already alluded. It is said that this part of the decree wasmerely declaratory of the trustees’ rights and was not an order fordelivery of possession. But I think it must be read together with the orderfor ejectment of the first defendant which was issued consequent upon it—an order in the following terms :—“ Order for delivery of possessionissued against the first defendant, returnable 18.4.44.” It was notmerely declaratory but executory, and was completed by the order forejectment. That a decree directing the delivery of trust property of atemple to new trustees is executable and not declaratory was held in theIndian case of Varadaiah Chetty v. Narasimhalu Chetty And I agreewith the proposition of Mr. H. V. Perera, for the plaintiffs, that upon asuit instituted (as here) under section 102 of the Trusts Ordinance, allthe reliefs claimed thereunder need not, and frequently cannot, beembodied in one decree, but that decrees may be issued from time to time.
I accordingly hold that the procedure under sections 325 to 327 of theCivil Procedure Code was available to the plaintiffs, and that the learnedDistrict Judge erred in dismissing his claim on the preliminary pointsraised in issues 9 and 10, or in considering at all issues 9 to 13 inclusive.
The appeal is allowed, the judgment below set aside, and the caseremitted to the District Court for decision on its merits, that is to sayon the remaining issues. The plaintiffs to have their costs of the appeal;costs below to abide the result.
Howard C.J.—I agree.
Appeal allowed.
1 A. I. R. 1932 Madras 41.