JUDGMENT
K.P. Sivasubramaniam, J.
1. This second appeal is against the judgment and decree of the learned Subordinate Judge, Mayiladurthurai in A.S.No. 93 of 1984 dated 20.11.84 setting aside the judgment and decree of the learned District Munsif of Sirkali dated 3.1.84 made in O.S.No. 513 of 1980.
2. The defendants in the above O.S.No. 513 of 1980 are the appellant in the second appeal.
3. The suit was filed by the plaintiffs contending that they have filed suit in O.S.No. 71 of 1975 on the file of Sub Court at Mayuram under Hindu Religious and Charitable Endowments Act for declaration that they are the hereditary trustees of ‘Uchikala, and Sayaraksha, Kattalais attached to Sri Kadaimudeeswaran temple at Keezhaiyur. In that suit, the second defendant and other trustees were made as parties. That suit was contested by the Commissioner, the 2nd defendant and the same was decreed in favour of the plaintiffs with costs. The plaintiffs had initiated execution proceedings and realised the cost awarded in O.S.No. 71 of 1975 and the second defendant had instructed the local Tahsildar to recover a sum of Rs. 1,289.80 being the costs of the suit awarded in O.S.No. 7 of 1975. The Tahsildar had issued a notice and then the plaintiffs sent reply through their lawyer expressing that they are not liable to pay the costs, and since the defendants were taking coervice steps, the present suit was filed.
4. In the written statement filed by second defendant, it is contended that the kattalais have been endowed for specific purpose and they will also come under the purview of the Hindu Religious and Charitable Endowments Act, as defined under Section 6(19), and the averment that the costs and expenditure incurred by the defendants will have to be got reimbursed only from and out of the funds of the temple, is not correct. According to the defendants in O.S.No. 71 of 1975 the Commissioner of Hindu Religious and Charitable Endowments Board was impleaded as a defendant by the plaintiffs and the commissioner had to incur expenditure by way of costs, charges and expenses as a party to the suit and the Kattalais are specific endowments. The plaintiffs have to reimburse the amount of Rs. 1,289.80 being the expenditure incurred by the Commissioner. The defendants also contended that it is not correct to say that they represented only the temple. The suit was also bad for want of proper notice and misjoinder of parties.
5. On the basis of the said pleadings, the trial court dismissed the suit in O.S.No. 513 of 1980 dated 3.1.1984 and the lower appellate court set aside the findings of the trial court. Hence, the defendants filed this second appeal.
6. The learned Government Advocate brings to my notice the provisions of Section 93 of Hindu Religious and Charitable Endowments Act, according to which the Government is entitled to recover the cost of the proceedings from the institution. He would also state that Section 102 of Hindu Religious and Charitable Endowments Act which deals with awarding of cost of the proceedings though the discretion is left to the court, the provision itself is made subject to Section 93, of Hindu Religious and Charitable Endowments Act. Under Section 93 of the Act, the Government is entitled to recover the expenses.
7. But what has been overlooked by the Government is that under Section 93 of Hindu Religious and Charitable Endowments Act, the recovery is to be made only as against the funds of the institution and not as against the individuals. The fact remains that the institution was impleaded as the fifth defendant in the earlier suit, represented by the executive officer. Therefore, the claim can be sustained only as against the institution and not as against the individuals.
8. Therefore, I do not find any merit in the second appeal and the same is dismissed. No costs.
