THE CODE OF CIVIL PROCEDURE.

[SECS. 535-538.

give leave to appear to the summons and to defend the suit, if it seem reasonable to the Court so to do, and on such terms as the Court thinks fits.

Act V of 1866, section 4. This section applies to the Courts mentioned in section 538. Irregular service of summons on two out of three defendants to an action brought on a joint-promissory note, does not give the defendant properly served any ground to question the decree passed against him-Ewing & Co. vs. Gosaidas, 2 B. L. R., App., 7.

Form of Decree.-See Bank of Bengal vs. Kartick Chunder, I. L. R., 16 Cal., 804. Appeal.-An appeal lies from an order refusing to set aside an ex-parte decreeLuckmidas vs. Ebrahim, I. L. R., 2 Bom., 544.

Power to order bill,

&c., to be deposited

535. In any proceeding under this Chapter the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof.

with officer of Court.

Act V of 1866, section 5. This section applies to the Courts mentioned in section 535.

of

Recovery of cost noting non-acceptance of dishonoured bill or note.

536. The holder of every dishonoured bill of exchange or promissory-note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment, or otherwise, by reason of such dishonour, as he has under this Chapter for the recovery of the amount of such bill or note.

Act V of 1866, section 6. This section applies to the Courts mentioned in section 538. Noting is a minute made on the bill by a notary at the time of refusal of acceptance or payment. It consists of his initials, the month, the day, the year, and his charges for minuting-Byles, 9th Ed., 251. As to the word "otherwise," see Lush's Practice, p. 1031.

537. Except as provided by sections 532 to 536 (both Procedure in suits inclusive), the procedure in suits under this under this Chapter. Chapter shall be the same as the procedure in suits instituted under Chapter V.

Application of

Chapter.

538. Sections 532 to 537 (both inclusive) apply only to—

(a) the High Courts of Judicature at Fort William, Madras and Bombay;

(b) the Court of the Recorder of Rangoon ;

(c) the Courts of Small Causes in Calcutta, Madras and Bombay;

(d) the Court of the Judge of Karáchi; and

(e) any other Court having ordinary original civil jurisdiction to which the Local Government may, by notification in the official Gazette, apply them.

In case of such application the Local Government may direct by whom any of the powers and duties incident to the provisions so applied shall be exercised and performed, and make any rules which it thinks requisite for carrying into operation the provisions so applied.

Within one month after such notification has been published such provisions shall apply accordingly, and the rules so made shall have the force of law.

The Local Government may, from time to time, alter or cancel any such notification.

Act V of 1866, section 8.

Further and other Relief -See Raghubar Dial vs. Kesho, I. L. R., 11 Alla., 18; Narashima vs. Ayyan, I. L. R., 12 Mad., 157.

CHAPTER XL.

OF SUITS RELATING TO PUBLIC CHARITIES.

to public charities may be brought.

539. In case of any alleged breach of any express or When suits relating constructive trusts created for public charitable or religious purposes, or whenever the direction of the Court is deemed necessary for the administration of any such trust, the AdvocateGeneral acting ex-officio, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit in the High Court or the District Court within the local limits of whose civil jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree

(a) appointing new trustees under the trust;

(b) vesting any property in the trustees under the trust; (c) declaring the proportions in which its objects are entitled ;

(d) authorizing the whole or any part of its property to be let, sold, mortgaged or exchanged;

(e) settling a scheme for its management;

or granting such further or other relief as the nature of the case may require.

The powers conferred by this section on the AdvocateGeneral may, outside the presidency-towns, be, with the previous sanction of the Local Government, exercised also by the Collector or by such officer as the Local Government may appoint in this behalf.

Repeal.

Act No. X of 1840, section 2, is here

by repealed.

This section applies to H. C.

As to the difference between this section and section 539, Act X of 1877, see Karuppa vs. Asamuga, I. L. R., 5 Mad., 383; Giyana vs. Kandasami, I. L. R., 10 Mad., 375, p. 506.

As to section 42, Specific Relief Act, see I. L. R., 8 Alla., 31.

Consent in Writing.-A suit by one trustee of a public charity against another for breach of trust requires sanction-Tricumdas vs. Khimji, I. L. R., 16 Bom., 626; but see Augustine vs. Medlycott, I. L. R., 16 Mad., 241. The suit sanctioned must be the suit brought-Srinivasa vs. Venkata, I. L. R., 11 Mad., 148. A suit was instituted by A, who had obtained consent. B's name was added, and afterwards he got the consent of the Collector: Held, the consent related back and was good-Ramayyangar vs. Krishnayyangar, I. L. R., 10 Mad., 185.

Sanction by the Court.-There is a difference between the Courts of Allahabad and Calcutta in regard to the nature of the cases requiring sanction under section 30, ante. See Lutufunnisa vs. Nazîran, I. L. R., 11 Cal., 33; Jan Ali vs. Ram Nath, I. L. R., 8 Cal., 32, and compare them with Zafaryab vs. Bukhtawar, I. L. R., 5 Alla., 497; Jawahra vs. Akbar Husain, I. L. R., 7 Alla., 178; Raghubar Dial vs. Kesho, I. L. R., 11 Alla., 18. See also Kalidas vs. Gor Parjaram, I. L. R., 15 Bom., 309.

Public Purposes.-Where neither the general public nor any section of the people have any interest either in the erection and maintenance of a temple or in the performance of the prescribed duties, so that the original grantor and grantee and their descendants are alone to be benefitted, the endowment does not become public if persons are fed at Gurupuja and a water pandal is maintained during the hot season-Sathappayyar vs. Periasami, I. L. R., 14 Mad., 1 p. 7.

a direct

before interest" were

Appoint a New Trustee.-A suit to appoint Dharmakartas falls within this section-Ragava vs. Rajaratnam, I. L. R., 14 Mad., 57. It has been doubted if a suit to remove a trustee can be brought under this section -Narasima vs. Ayyan Chetti, I. L. R., 12 Mad., 157. Compare section 32 of the Trustee Act of 1850 and In re Bignold's Settlement Trusts, L. R., 7 Ch. App., 223. See, also Bishen Chand vs. Nadir Hussein, 15 Ind. App., 1, p. 10, and the prayer and decree in Manohar Ganesh vs. Lakhmiram, I. L. R., 12 Bom., 247 and Subbayya vs. Krishna, I. L. R., 14 Mad., 186; and Chintaman vs. Dhondo, I. L. R., 15 Bom., 612, p, 617; Tricumdass vs. Khimji, I. L. R., 16 Bom., 626. Persons having an Interest.-The words " repealed by Act VII of 1888, section 44. Mahomedans living in a village where there is a mosque and in the habit of attending prayers read in it have not a direct interest in the endowment-Jan Ali vs. Ram Nath, I. L. R., 8 Cal., 32; 9 C. L. R., 433, and following this it has been held that where the father of the first plaintiff and uncle of the second had been joint manager of a Hindu temple with defendant's predecessor, and he and the other plaintiff had a right to interfere in the management and take a portion of the prasad, their interest was not sufficient under the Code of 1877-Narasimha vs. Ayyan Chetti, I. L. R., 12 Mad., 157 (compare Subayya vs. Krishna, I. L. R., 14 Mad., 186) but in another case it was decided that persons residing in the village, whose duty was to conduct pilgrims to the Shrine and perform the worship of the idol in their behalf had a sufficient interest to sue under Act of 1877-Manohar Ganesh vs. Lakhmiram, I. L R., 12 Bom., 247; and so has any one of the persons carrying out a charity under the present Code-Subbayya vs. Krishna, I. L. R., 14 Mad., 186 and in Jawahra vs. Akbar Husain, I. L. R., 7 Alla., 178; and Zafaryab vs. Bukhtawar, I. L. R., 5 Alla., 497 the decision in Jan Ali's case so far as it referred to Mahomedans was dissented from.

This section is mandatory-Tricumdass vs. Khimji, I. L. R., 16 Bom., 626; Jan Ali vs. Ram Nath, I. L. R., 8 Cal., 32; Lutufunnissa vs. Nazirun, I. L. R, 11 Cal., 33, and does not affect those special cases connected with religious uses in which the right of a private individual to sue has not been repealed by the Code, and any person interested in the proper observance of a religious endowment such as the worshippers or devotees of an idol, can sue in his own right to have the trust properly administered, or any breach of trust that may have occurred rectified-Thackersey vs. Hurbhum, I. L. R., 8 Bom., 433; Chintaman vs. Dhondo, I. L. R., 15 Bom., 612, p. 623; Zafaryab vs. Bukhtawar, I. L. R., 5 Alla., 497; but see Jan Ali vs. Ram Nath, I. L. R., 8 Cal., 32; Lutufunnissa vs. Nazîrun, I. L. R., 11 Cal., 33; Tricumdass vs. Khimji, I. L. R., 16 Bom., 626, and so can any representative of the person endowing the property--Brojomohun Dass vs. Hurrolall, I. L. R., 5 Cal., 700; Gajapati vs. Bhagaran, I. L. R., 15 Mad., 44, and the Advocate-General need not be made a party-Laksman Dass vs. Ganpatrao, I. L. R., 8 Bom., 365. So a worshipper can sue out a declaration of his right to use a mosque for devotional purposes-Jawahra vs. Akbar Husain, I. L. R., 7 Alla., 179, or a temple-Venkata vs. Subbarayadu, I. L. R., 13 Mad., 293, but cannot follow

property in the hands of a trespasser-Raghubar Dial vs. Kesho, I. L. R., 11 Alla., 18; Syed Amin vs. Ibram, 4 Mad., 112; Sathappayyar vs. Periasami, I. L. R., 14 Mad., 1, p. 14. It does not apply to persons seeking to follow trust property as managers-Vishvanath vs. Rambhat, T. L. R., 15 Bom., 148; Augustine vs. Medlycott, I. L. R., 15 Mad., 241, but see Tricumulass vs. Khimji, I. L. R., 16 Bom., 626.

DECREE. As to the claim of persons not a party on the record to execute a decree passed under this section, see Ragava vs. Rajaratnam, I. L. R., 14 Mad., 57.

As to the previous practice in suits relating to charities within the jurisdiction of the Supreme Court, see, as to Bombay, The Wardens of Nossa Senora da Salvacao vs. Hartmann, Perry's O. Cases, 338; Doe Do Howard vs. Pestonji Manickji, id., 535; The Advocate-General vs. Damochar, id., 526; and as to Madras, The Advocate-General vs. Brodie, 4 Moore, 190; as to Calcutta, Punch Cowrie Mull vs. Chunnoo Lall, 2 C. L. R., 121; Buideo Dass vs. Oodyram, 2 Tay. & Bell, 56. As to present practice, see Parmanandas vs. Venayek, I. L. R., 7 Bom., 19; 12 C. L. R., 92; Sovandass vs. Dayabhai, I. L. R., 9 Bom., 22; The Advocate-General vs. David Haim, I. L. R., 11 Bom., 185; Tricumdass vs. Khimji, I. L. R., 16 Bom., 626.

By sections 14, 15, 18, Act XX, 1863, any person interested in a religious establishment may, after sanction, sue the officers connected with it for breach of trust-Lutufannissa vs. Nazirun, I. L. R., 11 Cal., 33; see also Bulwant Rao vs. Pooran Mal, I. L. R., 6 Alla., 1; 10 Ind. App., 90. But that Act only applies to special officers while filling their offices-Sebapothi vs. Sabraya, I. L. R., 2 Mad., 58, in such endowments as had been or might have been under the management of Government by virtue of Reg. XIX of 1810-Kali Churn vs. Golabi, 2 C. L. R., 128; Dhurrum Singh vs. Kisen Singh, I. L. R. 7 Cal., 767; Jan Ali vs. Ram Nath, I. L. R., 8 Cal., 32; and see Sathappayyar vs Periasami, I. L. R., 14 Mad. 7; Protap Chandra vs. Brojonath, I. L. R., 19 Cal., 275. On the one hand the scope of the Act is not limited to cases in which the office is not hereditary-Natisa vs. Ganapati, I. L. R., 14 Mad., 103; on the other it does not apply to a suit instituted by the managing committee against their manager-Padmalev Roy vs. Ram Gopal, 11 C. L. R., 333, or a suit by the members of a "Punch" to have certain dedicated property ascertained-Punch Cowrie Mull vs. Chunnoo Lall, 2 C. L. R., 121; nor to a suit by an officer of a religious establishment for wrongful dismissal-Syed Amin vs. Ibram, 4 Mad., 112; nor where all the persons interested sue--Sathappayyar vs. Periasami, I. L. R., 14 Mad., 1; nor to compel the heir of a late manager to make good out of the property inherited by him a sum misappropriated by his father-Jeyangaru Lavaroo vs. Durma Dossi, 4 Mad., 2; nor to recover the property of a temple from an ex-trustee-Verasami Nayudu vs. Subba, I. L. R., 6 Mad., 54, and is limited in its scope to suits charging misfeasance, malversation, or neglect of dutyAgni Sharma Embrandri vs. Vishnu Embrandri, 3 Mad., 198; Mahalinga Rau vs. Vencata, I. L. R., 4 Mad., 157; and see Natisa vs. Ganapati, I. L. R., 14 Mad., 103; otherwise if the suit is really one to be appointed manager-Lutufunnissa vs. Nazirun, I. L. R., 11 Cal., 33.

Quære.-If" public charitable purposes" apply to the devastan of a temple or idol dedicated merely for the purposes of the temple or idol-Radhabai vs. Chunnaji, I. L. R., 3 Bom., 27. See also Ganesh Dharnidhar vs. Keshavrav, I. L. R., 15 Bom., 635.

As to the procedure to be followed in suits in regard to endowments other than the kind referred to in this section and Act XX of 1863, see Rup Narain Singh vs. Sunko Bye, 3 C. L. R., 112; Punch Cowrie Mull vs. Chunnoo Lall, I. L. R., 3 Cal., 563; 2 C. L, R., 121; Kali Churn vs. Golabi, 2 C. L. R., 128.

Costs.-The Advocate-General's costs come, as a rule, out of the trust fundParmanandas vs. Venayek, I. L. R., 7 Bom., 19.

Stamp-A suit to remove a manager in possession must be valued under section 7 of the Court-Fees' Act-Sonachala vs. Manika, I. L. R., 8 Cal., 516.

Limitation.-In a suit to follow money in the hands of a Dharmakarta, section 10 of the Limitation Act applies-Sethu vs. Subramanya, I. L. R.,11 Mad., 274; in a suit to oust a Shebaet, article 120 applies-Jagan Nath vs. Birbhadra, I. L. R., 19 Cal., 776.

Jurisdiction.-Compare Protap Chandra vs. Brojonath, I. L. R., 19. Cal., 275 and Augustine vs. Medlycott, I. L. R., 15 Mad., 241.

O'K., CIV. P.

31

PART VI.

OF APPEALS.

CHAPTER XLI.

OF APPEALS FROM ORIGINAL DECREES.

Appeal to lie from

all original decrees, except when expressly

540. Unless when otherwise expressly provided by this Code or by any other law for the time being in force, an appeal shall lie from the decrees, or from any part of the decrees, of the Courts exercising original jurisdiction to the Courts authorized to hear appeals from the decisions of those Courts.

prohibited.

An appeal may lie under this section from an original decree passed ex-parte.

Act XXIII of 1861, section 23. This section applies to H. C. in ordinary civil suits and also in its Vice-Admiralty Jurisdiction.--In the matter of the Ship “Champion," I. L. R., 17 Cal., 66; In the matter of the Ship "Fannie Skolfield," I. L. R., 17 Cal., 337. The last clause has been added by Act VII of 1888, section 45.

Under the Code the directions of the law as to appeals from orders and from decrees are distinct.

Appeals must be given by Statute or some equivalent authority-Meenakshi vs. Subramaniya, 14 Ind. App., 160; I. L. R., 11 Mad., 26; Ladli vs. Raje, I. L. R., 13 Bom., 650; they lie only from the decrees or any part of them and not from the decisions of Courts of original jurisdiction-Koylas Chunder vs. Ram Lall, I. L. R., 6 Cal., 206; Anusayabai vs. Sakharam, I. L. R., 7 Bom., 464; and if a party wishes to appeal from a particular issue, he must have it embodied in the decree-Naimut Khan vs. Phada Buldia, I. L. R., 6 Cal., 319, by a petition under section 206, ante-Jamaitunnissa vs. Lutfunnissa, I. L. R., 7 Alla., 606. In a suit to recover certain lands by setting aside a zur-i-beshgi lease, the Judge dismissed the suit, although he found that part of the consideration of the lease was borrowed for necessary purposes. It was held that defendant could not appeal against the finding-Pan Kooer vs. Bhugwunt, 6 Alla., 19. So where plaintiff sued for a kaboolyat at enhanced rates, and the first Court held defendants were not protected from enhancement but dismissed the suit, the defendants was not allowed to appeal on the question of the right to enhance-Shama Soonduree vs. Digumburee, 13 W. R., 1. M sued B his tenant holding over, for possession of certain lands. B pleaded a right of occupancy. N and R intervened, claiming adversely to both M and B, and were made parties to the suit. The Court dismissed the suit, because it accepted the title of the intervenors: Held that B. could not appeal-Noubat Rai vs. Bagrangi Lal, 6 Alla., 412. See also Muttukumarappa vs. Arumuga, I. L. R., 7 Mad., 145; Magundeo vs. Mahadeo, I. L. R., 18 Cal., 647.

No appeal lies from the order of a District Judge filling up a vacancy in the committee of temple under Act XX of 1863-Menakshi vs. Seeb Ramaniya, 14 Ind. App., 160, or from an order passed under section 5 of the Court-Fees Act-Balkaran vs. Gobind Nath, I. L. R., 12 Alla., 129, or from decrees or orders made under sections 53, 54 and 55 of Act XX of 1866-Sributlav vs. Baburam, I. L. R., 12 Cal., 511; or from an order refusing sanction to sue under section 18 Act XX of 1863; or from an order refusing to remove a guardian under section 84, of the Bengal Tenancy Act- Peari Mohun vs. Baroda, I. L. R., 19 Cal., 485; or from an order under 93 of the Bengal Tenancy Act-Hussain vs. Matookdharee, I. L. R., 14 Cal., 312, or from the order of a Collector under section 102, Act XIX of 1873-Tola Ram vs. Ishur, I. L. R., 9 All., 445, see also Imtiaz vs. Latafat-unnissa, I. L. R., 11 All., 328.

Decree. The word decree means the formal expression of an adjudication of any right, claim or defence set up in a Civil Court when such adjudication decides the suit or appeal; and when there is no civil suit there is not a decree, and a right to appeal is not given by this section-Meenakshi vs. Subramaniya, 14 Ind. App. 160; Balkaran vs. Gobind Nath, I. L.R., 12 Alla., 129, p. 156; and if it exists must be given by some law, id.; Raja vs. Strinivasa, I. L. R., 11 Mad., 319. See section 2, ante.