(Appeal (disposed of on 3-2-1944) against the order of the District Court of Bellary dated 6-8-1942 and made in I.A. No. 363 of 1941 in O.S. No. 43 of 1920 on the file of the Court of the Subordinate Judge of Bellary.)

Mockett, J.

This appeal concerns the mosque Jamma Masjid at Adoni. The appellants are twenty Adoni muslims. The respondents are the trustees who owe their existence to a scheme which was settled in 1920 in O.S. No. 43 of 1920. That scheme contains Cl. 22, which reads as follows:

Any of the plaintiffs or the Board of Trustees or twenty Mohammadans of Adoni interested in the mosque may by petition apply to the Court for such further directions or alteration or modification of the scheme as may be necessary. The Court may after publication of notice in such manner as it deems proper hear the petitioners and any persons that may appear after such notice or their pleaders and pass such orders as it thinks necessary in the circumstances of the case.

The learned District Judge of Bellary dismissed the application on the ground that it offended against S. 92 of the Civil Procedure Code. The law on the subject has been set at rest by the decision of the Full Bench of this Court reported in Veeraraghavachariar v. Advocate General, Madras (51 Mad. 31 [LQ/MadHC/1927/340] = 26 L.W. 728 (F.B.). The headnote which appears accurately to represent the judgment is as follows;

If in a decree for a scheme framed under S. 92 of the Civil Procedure Code liberty is given to persons to apply to the Court for directions merely to carry out the scheme already settled, such reservation of liberty in the decree will be intra vires if the assistance of the Court can be given without offending S. 92; but where liberty is given to apply to the Court for alteration or modification of the scheme, such reservation is ultra vires as offending S. 92.

The attention of the Full Bench was drawn to the fact that in two cases Prayag Dassji Varu v. Tirumala Srirangacharyulu Varu (30 Mad. 138), Kirpasankar v. Manohar Tambakar (24 M.L.J. 139), the Privy Council had apparently sanctioned schemes which contained clauses somewhat similar to R. 22 of the scheme before us. The Full Bench pointed out that never at any time was the attention of their Lordships invited to the point which arose before the Full Bench, namely, whether such clauses were ultra vires or intra vires . The same comment can be made with regard to a later decision of the Privy Council in Satischandra Giri v. Dharanidhar Singh Roy (1940 (1) M.L.J. 371 = 51 L.W. 49 (P.C.) where a similar clause is not the subject of comment. It is worthy of note that the decision of the Madras Full Bench in Viraraghavachariar v. Advocate General, Madras (51 Mad. 31 [LQ/MadHC/1927/340] = 26 L.W. 728 (F.B.) was not mentioned before their Lordships.

The question that arises in this case which has been dealt with at length by the learned District Judge is whether these proposals which were before him offended against the rule as laid down by the Full Bench. They are headed modifications proposed. They have been subjected to a careful analysis by the learned District Judge who has divided them into two groups and he takes the view that they all are modifications, alterations or additions and that not one of them can be said to be an application for directions for the purpose of carrying out the scheme already settled. We do not propose to follow the learned Judge throughout his analysis with which however we are in agreement. One or two examples are enough. There are certain striking changes, for instance, in R. 2 a period of five years is to be altered to three years. In R. 3 the subscription of four annas is to be reduced to two annas and the qualification of an elector is to be raised from a subscription of not less than one rupee to ten rupee s. Additions are to be made to R. 3 with regard to the publication of the preliminary electoral roll. In R. 8 a very important change is proposed. It originally reads thus, The office of the executive trusteeship shall go by rotation. It is sought to be altered to election and rotation. We do not propose to go further into the learned Judges analysis. It is enough to conclude with this: that there is a prayer for directing the accounts to be taken from 1931-32 upto date, that is, upto 1942, which palpably offends against S. 92(d) of the Civil Procedure Code. The learned Judge has therefore quite rightly held that the whole of the application in the Court below is an attempt to change the scheme substantially by means of alterations and additions. In other words, it offends against the rule laid down by the Full Bench in Veeraraghavachariar v. Advocate General, Madras (51 Mad. 31 [LQ/MadHC/1927/340] = 26 L.W. 728 (F.B.). Mr. Basheer Ahmed who has argued this case before us has left nothing unsaid that can be said. He has asked us to say that it was time that the decision of the Full Bench should be reconsidered in view of the decisions of other High Courts, for example, Srijib Nyayathirtha v. Dandy Swami Jagannadha Ashram(A.I.R. 1941 Cal. 618). There are no decisions of this High Court which in any way suggest that the view taken by the Full Bench in Veeraraghavachairar v. Advocate General, Madras (51 Mad. 31 [LQ/MadHC/1927/340] = 26 L.W. 728 (F.B.), requires reconsideration. It has been followed in several cases. It may be unfortunate that parties are driven to the cumbrous procedure of suits in these matters but that appears to be the law and apparently the considered law.

There was however one decision to which our attention was drawn, the decision of Venkataramana Rao J. reported in Govindaswami Naidu v. Kannuswami Chetti (1939 M.W.N. 1009). In that case the scheme provided for the election of trustees and the learned Judge held it was open to a worshipper or voter to apply to the Court for the issue of a direction to the trustee to remove the name of a person from the list of candidates. The learned Judge took the view that this was merely a direction for the carrying out of the scheme. It does not appear that the decision of Venkatasubba Rao and Cornish JJ. in Vaidhyalinga Mudaliar v. Board of Control, Sri Thayagarajaswami Devasthanam, Tiruvarur (59 Mad. 751 [LQ/MadHC/1936/105] = 44 L.W. 93), was brought to the notice of the learned Judge, especially the observations of Cornish J., and we do not think that case can be held to be an authority apart from the special facts on which it was decided.

We would add that the learned Counsel for the respondents took the point that an appeal did not lie in this case. We do not think it necessary to decide this as we dismiss the appeal on the merits.

In the result the appeal is dismissed with costs.