Judgement

Appeal from an order of the High Court (September 23, 1913) setting aside an order of the District Judge of Tanjore.

The facts appear fully from the judgment of their Lordships and may be shortly stated as follows. A member of a temple committee instituted under the Religious Endowments Act (XX. of 1863) died in 1912, but the remaining members failed to hold an election by the persons interested within three months as provided by s. 10 of that Act. The section is set out in the judgment. The District Judge of Tanjore upon an application by the respondent made an order under s. 10 that the remaining members of the committee should fill up the vacancy forthwith. They thereupon held an election by the persons interested. The appellant was the sole candidate and received 1745 votes. The remaining members of the committee declared him to be elected and so reported to the District Judge.

In 1913 the appellant and the respondent petitioned the District Court, the former that the appointment might be held valid, and the latter that it might be set aside.

On July 13, 1913, the District Judge declared that the appointment was regular and accepted the appellant as a member of the committee.

The respondent by a civil revision petition to the High Court under s. 115 of the Civil Procedure Code, 1908, prayed that the order of the District Judge might be set aside.

The High Court (Sir C. Arnold White C.J. and Oldfield J.) by a judgment delivered on September 23, 1913, rejected a preliminary objection that the High Court had no jurisdiction under the section last mentioned. They were of opinion that the decision of the Privy Council in Meenakshi Naidoo v. Subramaniya Sastri(L. R. 14 Ind. Ap. 160.) did not affect the question, and that Balaji Sakharam v. Merwanji Nowroji (( 1895) I. L.R. 21 Bomb. 270.), decided under a different Act, was distinguishable. By a judgment delivered on the same day the learned judges held that upon the true construction of Act XX. of 1863, s. 10, the remaining members of the committee should have filled up the vacancy by themselves making an appointment. They declined to follow Ramanuja Aiyangar v. Anantaram Aiyar (6 Madr. L. J. 1.), in which it was held that upon an order to fill up a vacancy the proper course was to hold an election. The order of the District Judge was accordingly set aside and the matter remitted to him.

1917. April 26. De Gruyther, K.C., and Sproule, for the appellant. The High Court had no jurisdiction to call for the record in revision under s. 115 of the Code of Civil Procedure, 1908. The District Judge had not decided a case within the meaning of that section. His order was not a judicial decision in the exercise of his ordinary civil jurisdiction but was an administrative act as a person4 designata for a particular purpose Meenakshi Naidoo v. Subramaniya Sastri. (L. R. 14 Ind. Ap. 160.) The proceedings before the District Judge was not a " case " ; that word means a suit or a proceeding in a suit Subbaya v. Adoy Naide. (( 1915) 29 Madr. L. J. 671.) In any case the High Court wrongly construed s. 10 of Act XX. of 1863. The only method provided by the Act for filling up a vacancy is by holding an election. The order of the District Judge was to compel the remaining members of the committee to do that which they had omitted to do. The persons interested have a right to elect, but if the judgment is right the remaining members can defeat that right by omitting to hold an election. If, however, the appointment should have been made by the remaining members themselves they were entitled to ascertain the opinion of the electorate and themselves appoint the person elected. They in fact adopted the result of the election and admitted the appellant as a member.

Sir Erle Richards, K.C., and Kenworthy Brown, for the respondent, were not called upon.

May 21. The judgment of their Lordships was delivered by

LORD ATKINSON. This is an appeal from a judgment and order of the High Court of Madras