Judgement

Consolidated Appeal (No. 49 of 1927) from three interlocutory orders of the High Court (January 8, March 26, and 31, 1926) varying orders of the District Judge of Hooghly.

The pro forma respondents Nos. 2-7 instituted a suit under ss. 92 and 93 of the Code of Civil Procedure. 1908, in the District Court against the respondent No. 1, the mahant or trustee of a temple, alleging breaches of trust, misappropriation of the temple properties, and neglect of duty. The plaintiffs prayed that the property belonging to the temple might be ascertained, a declaration that certain property claimed by the defendant was temple property, for the removal of

Law Rep. 55 Ind. App. 131 ( 1927- 1928)

Benoy Krishna Mukherjee V. Satish C handra Giri 299

the defendant from being mahant, and other relief, including the appointment of a receiver of the trust estate. The defendant by his defence admitted that certain properties specified in schedules attached to the plaint were temple properties, but contended that other properties so specified belonged to him.

The present appellants were subsequently added as plaintiffs, and upon their application under Order XL., r. 1, the District Judge appointed a receiver of all the properties in suit. Upon an appeal to the High Court (Greaves and Panton JJ.) the order was discharged so far as it related to the properties which the defendant claimed as belonging to him personally.

1927. Nov. 29. De Gruyther K.C. and Byam for the appellants.

Upjohn K.C. and Dube for the first respondent.

[With reference to the principles applicable upon an interim application for a receiver reference was made to Foxwell v. Van Grutten ([ 1897] 1 Ch. 64.) ; Sidheshwari Dabi v. Abhoyeswari Dabi (( 1888) I. L. R. 15 C, 818.) ; and Chandidat Jha v. Parmanand Singh. (( 1895) I. L. R. 22 C. 459.)]

Dec. 15. The judgment of their Lordships was delivered by

VISCOUNT SUMNER. This is an appeal from three con solidated orders of the High Court, Calcutta, which varied orders of the District Judge of Hooghly by discharging so much of them as ordered a receiver to be appointed pendente lite of certain properties in dispute included in “class C."

The suit had been brought against the mahant of the temple of Tarakeswar, alleging his unfitness for his office, and praying for his removal, and for a declaration that certain lands, claimed to be his as nij lands, were truly debottar lands belonging to the temple, with other relief. The District Judge made interlocutory orders for a receiver of three classes of property. Those as to which his receivership order was discharged had been in the mahants possession and enjoyment for a considerable number of years, and were alleged by him in some cases to have passed to him under the will of his predecessor, who had acquired them as his nij property, and in others to have been purchased by himself out of personal offerings made to him by pilgrims and others in recognition of acts of service to them. The suit, so far as their Lordships have been informed, though its prosecution has been unaccountably delayed, is still awaiting trial.

On an interim application for a receivership such as this, the Court has to consider whether special interference with the possession of a defendant is required, there being a well founded fear that the property in question will be dissipated or that other irreparable mischief may be done unless the Court gives its protection. Such an order is discretionary, and the discretion is, in the first instance, that of the Court in which the suit itself is pending. When, as in this case the order of that Court is altered on appeal it becomes necessary to consider whether the Court below had before it the evidence required to support such an order and considered it in accordance with the principles on which judicial discretion must be exercised. If the Court of review rightly concludes that proper discretion was not used below, it is free to exercise its own discretion in the matter