The main legal point established in the judgment is that a provision in a scheme decree is not executable.

Venkatasubba Rao, J.

1. The question raised in this appeal is whether the provisions in a scheme decree are executable. I have repeatedly held that they are not, but as in two cases decided by Ramesam, J., and my learned brother a different view has been expressed, I have considered the matter carefully and anxiously in the light of the long and learned arguments which have been addressed to us. The difficulty in my opinion, arises from the different view-points as regards the meaning and scope of what is generally termed a scheme suit. As I observed in Ranganatha Thathachariar v. Krishnaswami Thathachariari decided by Old field, J., and myself, what the plaintiff in a scheme suit prays for is a scheme and when the decree frames a scheme, there remains nothing further to obtain by way of execution. I distinguish there the other classes of suits from scheme suits in this respect. In a money suit, for example, the successful plaintiff obtains a decree for money, that is to say, a decree directing the opposite party to pay him the money; but in a scheme suit the decree that is passed, is not that a scheme shall hereafter be settled, but the decree itself embodies the scheme. Let us suppose that for endowing a hospital a testator has left property. The Court is invited to frame a scheme and it does so. In the scheme are set forth the duties of the various functionaries and bodies. The treasurer, let us say, it provides, shall keep the accounts in such and such a manner; he shall remit the monies received on such and such dates to the bank. Then, let us suppose there is another provision which says that the members of the Governing Board shall retire annually by rotation. It will be seen that the provisions I have indicated, are of a directory as distinguished from a declaratory nature. Let us examine the argument that any provision in a scheme, provided it is directory, must be enforced in execution. In the case supposed, if the person happening to be the Treasurer, say a hundred years after the settling of the scheme, fails to keep the accounts in the" manner specified or makes default in the remitting of the monies to the bank, the erring Treasurer, according to the argument, is to be proceeded against in execution of the decree. Again, if a member of the Governing Board due to retire fails to do so and continues on it with the consent of his fellows, the proper way, according to this argument, of enforcing compliance with the scheme, is to execute the decree under the Code. A position that leads to such anomalies, I find it difficult to accept. Again, as a necessary corollary, to be logical, if these are matters to be decided in execution, Section 47 of the Code bars a regular suit. Further, as I observed in the same case, I fail to see how a scheme or constitution embodied in a decree stands on a different footing from a scheme contained in a will or in an instrument of dedication.

2. The true distinction is, not whether a provision in a scheme decree is directory or declaratory, but whether the provision sought to be executed is or is not in what is really the scheme part of the decree. To this distinction both Reilly, J., and myself have adverted in Vedantam Ramacharyulu v. Kasturi Narasimha Suryanarayana (1933) M.W.N. 183. There, both of us point out that the proper way of dealing with the matter is, first to separate the scheme part form the rest of the decree and that, when that is done, no provision in the scheme part is executable, whether it is directory or declaratory.

3. The Courts sometimes insert in schemes framed by the decree what is known as a liberty clause. In virtue of the liberty so reserved, a party may, in accordance with, and subject to1:32 PM 4/21/07 the terms of the scheme, approach the Court, invoking its aid in regard to matters covered by the liberty clause, which may provide for matters of various types. When the trustees feel a doubt as to the proper interpretation of a clause or as to their d