- (1.) Sangam Lal and Ganga Narain as relators filed suit No. 5 of 1954 in the District court of Kanpur for an order removing Ajodhia prasad, appellant in this appeal from the office of Sarvarakar and the managership of the trust described in the plaint and from order removing defendants Nos. 2, 3 and 4 from the "office of trusteeship", for appointment of new trustees, Sarvarakar and Manager and for an order against the appellant directing him to render an account of the income and expenses of the trust property during his period of office and for framing a scheme for the management of the trust. The Trial court by order, dated 12/09/1955, passed the following order: ".. ,. . . I decree the suit declaring the property in suit to be trust property for public purposes of charitable and religious nature and order the "removal of all the defendants from the office of 'sarvarakar' and the trustees and direct the appointment of Board of new trustees as detailed in the following scheme for management. The defendant No. 1 is directed to render accounts of the income and expenditure of the trust property of the last six years to the new Board of trustees in whom the entire trust property shall vest. "the court then proceeded to set out the clauses of the scheme of administration of the trust. Thereafter, by order, dated 14/10/1955, the court passed a supplementary order, part of which was by consent and the remaining being an adjudication of the court. The court ordered by consent that: ".. . . . The following trustees are hereby appointed to look after the management of the trust property : I. Sri Sri Narain, Advocate, 2. Sri ajodhia Prasad, 3. Sri Durga Prasad, 4. Sri Puran Chand and 5. Sri hari Har Gaur, Vakil. In accordance with the consent of parties, Sri sri Narain, Advocate, is hereby appointed as the President of the Board of Trustees". and then proceeded to order: "As there is a dispute between the parties regarding the posts of manager and secretary, the court, therefore, having taken into regard the benefit of the trust, appoints Ajodhia Prasad as the Manager and durga Prasad as the secretary of the Board of Trustees. Should Ajodhia fail to perform his 'duty honestly, the Board shall have the power to frame bye-laws to curtail his powers. "a decree was drawn up by the District court containing the directions pursuant to the judgments, dated 12/09/1955 and 14/10/1955.
(2.) Against the order by the District court, an appeal was preferred to the High court of Allahabad. The High court in appeal set aside the order appointing the appellant as manager of the trust and further directed that an account be taken from the appellant for the period of his entire management. The court set aside the order of the District court, dated 14/10/1955, appointing the appellant as the Manager of the trust and directed the District court to take steps to appoint another Manager, out of the remaining trustees. For giving effect to the last direction, the High court ordered that the case of Durga Prasad may also be considered and his appointment as secretary be set aside. Against the order passed by the High court, with certificate granted under Article 133 (1) (a) of the Constitution this appeal has been preferred.
(3.) It is contended in the first instance that the High court had no jurisdiction to set aside order of the District court passed by consent appointing the appellant as the Manager. We are unable to hold that the order appointing the appellant the Manager was an order made by consent. The order, dated 14/10/1955, consisted of two parts, the first part relating to the appointment of trustees was an order by consent, and the second part was the adjudication of the court. That second part order was open to examination by the court for its propriety.;