Judgment

FAZAL ALI J.:- This appeal by certificate granted under Article 133 of the Constitution is directed against a Division Bench judgment dated July 31, 1969 of the Orissa High Court* and arises in the following circumstances.

* Reported in ILR (1970) Cut 196.

2. The appellants-plaintiffs had instituted a suit under Section 62 (2) of the Orissa Religious Endowments Act, 1939 (Act No. 4 of 1939) (hereinafter referred to as the Act) (this Act applies only to public endowments) to set aside the order dated 4-8-1950 of the respondent-defendant by which the temple of the appellants. whose deity was Radhakanta Deb, was declared to be a public temple and a trust and the endowment was held to be of a public nature and, therefore, was to be governed by the Act. The Subordinate Judge deuced the appellants-plaintiffs suit holding that the deity installed in the temple was a family deity of the Pani family and the endowment being of a private nature, the Act had no application and the Order passed by the respondent regarding the management was set aside.

3. The respondent (Commissioner of Hindu Religious Endowments, Orissa) filed an appeal in the High Court against the decision of the Subordi