The Judgment of the Court was as follows:—
This is an appeal by the Plaintiffs in a suit instituted by them under sec. 92 of the Code of Civil Procedure 1908 with regard to what in known as the Guptipara temple. The District Judge has dismissed is the suit on the ground that the trial of the question raised herein is barred by the result of the decision in an earlier suit which was pending at the date of the institution of the present suit. It appears that a Manager was appointed in respect of this temple under sec. 5 of the Religions Endowment Act, 1863, and that thereupon the first Defendant who claims to be a Mohunt or Dundee of the temple instituted a suit for the establishment of his title. In that suit, there were three Defendants; namely, one Rajendra Nath Roy who had been appointed as Manager under sec. 5 and had been subsequently removed, Raghu Nath Banerjee, who was his successor in the office of Manager and Nil Gopal Chatterjee, who was added as a party on his own application inasmuch as he asserted that lie was a rival claimant to the office of Dundee. The members of the public made an attempt to intervene in the suit but the attempt was unsuccessful. When the matter was brought up to this Court Mr. Justice Fletcher, who delivered judgment held that the members of the public were not entitled to intervene and that their remedy would be by way of a suit properly framed and instituted for the purpose. Thereupon the present suit was instituted on the 9th October 1917 with the consent in writing of the Advocate-General under sec. 92 C.P.C, of 1908. During the pendency of the present suit the previous suit instituted by the first Defendant under the provision of sec. 5 of Act XX of 1863 was decreed by the Subordinate Judge on the 19th February 1918. By that decree it was declared that the then Plaintiff was the duly constituted Mohunt of the temple and that he was entitled to the possession of the Maths, Thakurs and the properties moveable and immoveable belonging thereto. That clearly is a decree which though operative against the Manager appointed under sec. 5 of Act XX of 1863 as also against the rival claimant who intervened of his own accord could not possibly operate to defeat a suit by members of the public instituted under sec. 92, C.P.C Sec. 92 contemplates the administration of a trust express or constructive created for public purposes of a, charitable or religious nature. Such administration may include, amongst other reliefs, the removal of an existing trustee, the appointment of a new trustee or both. In the case before us, there is apparently a controversy whether the endowment was of such a description as to attract the operation of the provisions of Act XX of 1863. If it were held that the endowment was not of such a description the appointment of a Manager under sec. 5 would be without jurisdiction, and the decision in a suit instituted under that section against the Manager could not possibly bind the members of the public who desired to have the character of the endowment investigated under sec. 92 of the Code. We may further point out that it would be open to the Court in a suit properly framed under sec. 92 to hold that the contesting Defendant was the: Mohunt properly appointed and that there was no reason for his removal. On the other hand the Court might hold that he was not the properly constituted Mohunt and that he was not the proper person to be appointed for the benefit of the trust. We are of opinion that nothing has happened in the previous suit, which was decided by the Subordinate Judge on the 19th February 1918 which debars the investigation of the questions raised in the present 1 suit.
The result, therefore, is that this appeal, is allowed, the decree of the District Judge set aside and the case remitted to him to be tried on the merits. The Appellants, are entitled to their costa of this appeal. The hearing fee is assessed at ten gold mohurs. The costs of the proceedings in the Court below will be in the discretion of the Court after the suit has been tried out. Until further orders of the District Judge the Defendant No. 1 will continue to act as Receiver. The Appellants undertake not to execute the decree for costs obtained by him, until the disposal of the suit.
J.N.R
Appeal allowed.