new trustee is resisted in his attempts by the third parties to get pos- Suits brought not to establish a public right in respect of a public trust, but to remedy a particular infringement of an individual right, are not within the section.-Hence such suits do not require the sanction of the Advocate-General. The following are instances of suits of this character :— (1) a suit by a person claiming to be a co-trustee of certain dargahs and (3) a suit by the head of an adhinam for a declaration that a mutt was (4) a suit between two private parties claiming certain rights as mutawalis The consent of the Advocate-General is not necessary to the institution of any of the above suits Suits against third parties, that is, trespassers or transferees of trust-property from trustees, for recovery of trust-property from their hands or for ejecting them from the trust property, are not within this section. Hence such suits do not require the sanction of the Advocate-General. The following are instances of suits of this character : (1) a suit by three disciples of a mutt for a declaration that the defendant (2) a suit for a declaration that a certain piece of land of which it was (3) a suit to set aside an alienation of trust property alleged to have S. 539 S. 538 property from the hands .of the alienees: Kazi Hassan v. Sagun 24 Bom. 170. [Here the defendants are transferees from the trustees.] (4) a suit by plaintiffs as trustees of a temple for the recovery of trust property from the defendants who, it was said, were in wrongful possession of the property: Budree Das v. Chooni Lall, 33 Cal. 789. [Here the claim against the defendants is as against trespassers.] Enforcement of decree passed under this section.—A decree under this section directing particular acts to be performed by the trustees may be enforced by the imprisonment of the trustees or by the attachment of their property, or by both (k). See notes to s. 260. Whether this section does away with or affects rights of suits which existed prior to its enactment and independently of it. This section did not occur in the Code of 1859. It was introduced for the first time into the Code of 1877. Before the introduction of this section into the Code of 1877 there were certain suits relating to public charitable or religious trusts which could be instituted by certain persons as plaintiffs. Thus (1) persons appointed supervisors over trustees could sue for the removal of the trustees for malversation and to obtain the appointment in their place of other fit and proper persons (1); similarly (2) one or more of the members of a defined class of the general public [such as the Satchasi community of Chatra] could sue on behalf of the whole class, with the leave of the Court under s. 30, to obtain a declaration of their right to take part in the management of the worship of a goddess (m). It will at once be seen that the above suits fall within the perview of the present section. The question is, whether the present section does away with or affects rights of suits of the character mentioned above. It has been held by the High Court of Bombay that it does. According to that Court this section is mandatory, in other words, that every suit of the character mentioned in this section must be brought in accordance with its provisions, and not otherwise. That is to say, the suits referred to above can no longer be brought by the supervisors as plaintiffs or by the members of a community as plaintiffs, but they must be instituted either by the Advocate-General or by two or more persons interested in the trust after obtaining the sanction of the Advocate-General; and, further, these suits can only be brought in the special Courts indicated in the section, namely, the High Court or the District Court, as the case may be (n). On the other hand, it has been held by the other High Courts that this section is permissive, and that it does not take away or affect the rights of suit which existed prior to and independently of it. Hence according to these Courts suits of the character mentioned above may, notwithstanding the enactment of this section, be brought as before by the above named parties as plaintiffs in any Court competent to entertain those suits, or they may be brought by the Advocate-General or by two or more persons with the sanction of the Advocate-General. According to those Courts, this section is an enabling section in the sense that two persons may now sue, (k) Damodarbhat v. Bhogilal, 24 Bom. 45; (m) Monmotho v. Harish Chandra, 33 Cal. 905. (n) Tricumdass v. Khimji, 16 Bom. 626; Sayad Hussain v. Collector of Kaira, 21 Bom. 48. where it would have been necessary before that all should sue or that some should obtain leave to sue on behalf of the rest (o). Specific Relief Act, 1877, s. 42.-Where a suit is maintainable under this section, and the plaintiff seeks any of the reliefs specified in the section, s. 42 of the Specific Relief Act does not apply. Thus if a suit is brought under this section for declaration that the defendants are not the lawful trustees and for the appointment of new trustees, the suit will not be dismissed because there is no prayer for delivery of the trust property to the new trustees that may be appointed by the Court (p). [S. 42 of the Specific Relief Act provides in effect that where a suit is brought for a declaratory decree, and the plaintiff is able to seek further relief than a mere declaration, but omits to do so, the suit shall be dismissed.] Limitation Act.-The de jure managers and trustees of a public charity losing their right by limitation to oust the de facto trustees, does not confer on the latter immunity from suit on the part of the Advocate-General under this section (q). (o) Nellaiyappa v. Thangama, 21 Mad. 406: Budree Das v. Chooni Lal, 33 Cal. 789, 800-804; Monmotho v. Harish Chandra, 33 Cal. 905; Ram Das v. Badri Narain, All. 27. (p) Neti Rama v. Venkatacharulu, 26 Mad. (q) Lakhshmandas v. Jugalkishore, 22 Bom. 216. S. 539 S. 540 PART VI. Of Appeals. CHAPTER XLI. OF APPEALS FROM ORIGINAL DECREES. Appeal to lie from all original decrees, except when expressly prohibited. 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. An appeal may lie, under this section, from an original decree passed ex parte. Right of appeal.—It is not to be assumed that there is a right of appeal in every matter which comes under the consideration of a Court; such right must be given by statute, or by some authority equivalent to a statute (r). No right of appeal can be given except by express words (s). Note in the present section the express words "an appeal shall lie from the decrees." An appeal lies from all decrees unless otherwise expressly provided by this Code. Thus no appeal lies from a decree passed in accordance with an award, for it is expressly provided by s. 522 that no appeal shall lie from such a decree. Agreement not to appeal.-An agreement whereby the parties agree not to appeal from a decree is binding upon the parties thereto, if it is for a lawful consideration and is otherwise valid (†). ante. Decree. As to the distinction between a decree and an order, see p. 5 All decrees are appealable, unless the appeal is barred under this Code or any other law. But all orders are not appealable; it is only those orders that are specified in s. 588 that are appealable under the Code. An order absolute for sale of mortgaged property passed under s. 89 of the Transfer of Property Act in a suit for sale by the mortgagee, is appealable. According to the Madras High Court, such an order is appealable as an order under s. 244, clause (c) (u). According to Calcutta High Court, it is appealable as a substantive decree (v). Appeal from a preliminary decree.-It has been held by a Full Bench of the Calcutta High Court [Maclean C. J., and Rampini J., dissenting] that a party against whom a preliminary decree is passed may, at his option, either prefer a separate appeal from such decree, or after the passing of the final decree prefer a single appeal from both the decrees together. According to this view, if a preliminary decree is passed in a suit for partition under s. 396 declaring the rights of the parties, it is open to the appellant in an appeal from the final decree to question the correctness of the preliminary decree, though no appeal was preferred against the latter decree within the time allowed by law (w). An order directing accounts to be taken is a decree (see definition of "decree," s. 2), and is therefore appealable. It has been held by the Calcutta High Court that, though no appeal may be preferred from such order within the period of limitation, it is open to the appellant in an appeal from the final decree to question the correctness of the order (x). Appeal from a decree ex parte.-The last clause of the section provides that an appeal may be preferred from a decree passed ex parte. Suppose that an appeal is preferred from a decree ex parte, and the appellate Court comes to the conclusion that the lower Court was wrong in proceeding to decide the suit ex parte: what procedure should the appellate Court adopt in such a case? According to the Bombay High Court, the appellate Court should not remand the case to the lower Court for re-hearing, for an order of remand under s. 562 could only be made when the lower Court has disposed of a suit on a preliminary point, but should proceed as directed by ss. 568 and 569 (y). The Madras High Court has held that the Court has inherent power, independently of the provisions of s. 562, to remand the case for re-hearing, and the appellate Court should in such a case remand the case to the lower Court for re-hearing (≈). Test of jurisdiction of appellate Court.-Where the pecuniary value of an appeal determines the Court authorized to hear it within the meaning of this section, the test of jurisdiction is the valuation of the original suit and not the actual amount affected by the decree and involved in the appeal (a). Where no definite sum is claimed by the plaintiff in his plaint, the amount found by the lower Court to be due to him must be regarded as the value of the original suit for the purposes of appeal (b). Who may appeal. — An appeal under this section may be preferred by the following persons: 1. Any party to the suit adversely affected by the decree (c), or, if such 2. Any transferee of the interest of such party, [i. e. party adversely in- (a) Boidya Nath v. Makhan, 17 Cal. 680. (b) Gulab Khan v. Abdul Khan, 8 Cal. W. N. 233. (c) Krishna v. Mohesh Chandra, 9 Cal. W.N. (d) Gajadhar v. Ganesh, 7 B. L. R. 149. S. 540 |