ORDER
Pradipta Ray, J.
1. The present petitioner as plaintiff filed O.S. No. 12/80-I in the Court of the Subordinate Judge, Puri against the opp. parlies. The suit was filed on March 18, 1980 and was valued at Rs. 7,7 00/-. In the said suit petitioner filed an application under Order 39, Rules 1 and 2 of the Civil Procedure Code which was registered as Misc. Case No. 103 of 1981. By judgment and order dated October 8, 1985 the trial Court allowed the said application in part and restrained the opp. parties from receiving dry bhog from the pilgrims and other devotees on the pretext of offering the same to the deities. The trial Court, however, refused to prohibit payment of Dakshina to the opp. parties. Against the said interim order present opp. parties I and 2 filed Misc. Appeal No. 70/98 of 1985/86 in the Court of District Judge, Puri. By judgment and order dated November 4, 1994 Second Additional District Judge, Puri passed the following order :
'The defendants 1 to 4(a) in T. S. 12/80-I ofthe Court of Subordinate Judge, Puri arc restrained from interfering with the plaintiffs right to offer dry bhog before deities in the main temple of Lord Jagannath by collecting such bhog from the devotees in their office premises till the disposal of the suit.'
Plaintiff has filed this revision against the aforesaid appellate order modifying the interim order passed by the trial Court.
2. In this revision Mr. R. K. Mohapatra, Senior Advocate appearing for the petitioner raised an objection that the appeal against the interim order passed by the trial Court in the present suit lay before the High Court and not to the District Court. According to him, the forum of appeal was to be determined on the basis of the position as prevailed on the date of institution of the suit. He pointed out that on March 18, 1980 when the suit was instituted District Court's appellate jurisdiction was limited to orders and decrees passed by the Subordinate Judge in suits valued up to Rs. 5,000/-.
3. On the date of institution of the suit (March 18,1980) Bengal, Agra, Assam Civil Courts Act, 1887 was operative. Under the provisions of the said Act an appeal against any order or decree passed by the Subordinate Judge in suits valued at more than Rs. 5000/- lay before the High Court. Orissa Civil Courts Act, 1984 was enacted and brought into force from January 1, 1985. Under Section 16 of the Orissa Civil Courts Act District Court's appellate jurisdiction was extended to orders and decrees passed by the Subordinate Judges in original suits valued up to Rs. 20,000/-. In the present case Misc. Appeal was filed in the Court of the District Judge presumably because of the provisions of the Orissa Civil Courts Act. After a contested hearing the Addl. District Judge disposed of the Misc. Appeal on November 4,1994. Present petitioner did not raise any objection to the jurisdiction of the District Court to entertain or dispose of the appeal although the said appeal was pending for about 9 years. For the first time the objection relating to jurisdiction to entertain the Misc. Appeal has been raised in this revision application.
4. Before dealing with the main question raised on behalf of the petitioner it should be considered whether such objection can be permitted to be raised for the first time in revisionbefore this Court in view of the provisions of Section 21 of the Civil Procedure Code, even if it is assumed that the District Court had no pecuniary jurisdiction to entertain the appeal.
5. As already pointed out no objection was raised by the petitioner before the District Court. The appeal was allowed to be heard and disposed of on merits. The objection relating to jurisdiction has been raised in this Court only because the order of the District Court went against the petitioner in part.
6. A defect of jurisdiction may be territorial, pecuniary or in respect of the subject-matter of the action. It is. settled that under the general principles any order passed by a Court lacking jurisdiction of any kind is a nullity and such defect cannot be cured by consent or acquiescence or failure to raise objection. But these general principles are not applicable if application of those principles are restricted by appropriate legislation.
7. Before the Civil Procedure (Amendment) Act, 1976 Section 21 of the C.P.C. contained only one clause regulating objection relating to territorial jurisdiction. Thus the general principles relating to absence of jurisdiction remained applicable when there was lack of pecuniary jurisdiction or subject jurisdiction. To take care of the situations which were left untouched by original Section 21 of the C.P.C., Section 11 was introduced in the Suits Valuation Act to regulate objections relating to over-valuation or undervaluation of suits and consequential lack of jurisdiction. Civil Procedure Code (Amendment) Act, 1976 took care of the situation. It amended Section 21 of the C.P.C. by inserting new clauses to regulate objections relating to absence of pecuniary jurisdiction and absence of competence of the executing Court. In the object and reasons for effecting amendment in Section 21 of the C.P.C. it has been stated :-
'It often happens that the judgment of the Court is challenged in appeal or revision not only on the ground of place of suing but also on the ground of pecuniary jurisdiction of the Court. With a view to expediting the disposal of suits, a new sub-section, similar to the provisions of Section 21, is being included in Section 21 to the effect that objections as regards pecuniary jurisdiction should be raised at the earliest opportunity and, even if so taken, should notprove fatal unless there has been a consequent failure of justice.'
Amended Section 21 of the C.P.C. is quoted below :-
'21. Objection to jurisdiction.- (1) No objection as to the place of suing shall be allowed by any appellate or revisional Court unl'ess such objection was taken in the Court of first instance of the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has teen a consequent failure of justice.'
After the said amendment of Section 21 by the Civil Procedure (Amendment) Act, 1976 me general principles relating to governing the field of absence of jurisdiction, the manner and stage of raising such objection no longer apply to the field covered by Section 21 of the C.P.C.
8. This legal position was made clear by the Supreme Court in Kiran Singh v.Chaman Paswan, reported in AIR 1954 SC 340: (1954 A11 LJ 551). In Kiran Singh's case (supra) plaintiffs filed a suit in the Court of the Subordinate Judge and valued it at Rs. 2950/-. The said suit having been dismissed by the trial Court plaintiffs filed an appeal before the Court of the District Judge. The First Appellate Court confirmed the judgment of the trial Court and dismissed the appeal. Plaintiffs filed a Second Appeal in the High Court. In the High Court Stamp Reporter raised an objection regarding the value of the suit. Question was referred to the Court and it was determined that correct valuation of the suit was Rs. 9980/-. After revision of valuation plaintiffs raised an objection in the High Court that the appeal from the decreeof the Subordinate Judge (trial Court) would lie not to the District Court, but directly to the High Court and it was urged that the appeal should be heard as a first appeal ignoring the judgment of the District Court. High Court rejected the said contention and dismissed the second appeal. Plaintiffs approached the Supreme Court. By an elaborate judgment Supreme Court negatived the contentions of the plaintiff and clarified the position of law. It was held by the Supreme Court therein at page 342 (of AIR):-
'With reference to objections relating to territorial jurisdiction, Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate orrevisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99, C.P.C. and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on the technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act at page 343 (of AIR).
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It is next contended that even treating the matter as governed by Section 11 of the Suits Valuation Act, there was prejudice to the appellants, in that by reason of the undervaluation, their appeal was heard by a Court of inferior jurisdiction, while they were entitled to a hearing by the High Court on the facts. It was argued that the right of appeal was a valuable one, and that deprivation of the right of the appellants to appeal to the High Court on facts must therefore be held, without more, to constitute prejudice.
This argument proceeds on a misconception. The right of appeal is no doubt a substantive right, and its deprivation is a serious prejudice; but the appellants have not been deprived of the right of appeal against the judgment of the Subordinate Court. The law does provide an appeal against that judgment to the District Court, and the plaintiffs haveexercised that right. Indeed, the undervaluation has enlarged the appellants' right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued, by reason of the under-valuation they contained right to two appeals, one to the District Court arid another to the High Court. The complaint of the appellants really is not that they had been deprived of a right of appeal against the judgment of the Subordinate Court, which they have not been, but that an appeal on the facts against that judgment was heard by the District Court and not by the High Court. This objection therefore amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of Section 11 of the Suits Valuation Act.
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If the fact of an appeal being heard by a Subordinate Court or District Court where the appeal would have lain to the High Court if the correct valuation had been given, is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words 'unless the overvaluation or undervaluation thereof has prejudicially affected the disposal of the suit or appeal on its merits' would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the section results. And the prejudice envisaged by that section therefore must be something other than the appeal being heard in a different forum.
A contrary conclusion will lead to the surprising result that the section was enacted with the object of curing defects of jurisdiction arising by reason of over valuation or under valuation, but that, in fact, this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined.
It is next argued that in the view that the decree of the lower appellate Court is liable to be reversed only on proof of prejudice on the merits, the second appellate Court must for the purpose ofascertaining whether there was prejudice, hear the appeal fully on the facts, and that, in effect, it should be heard as a first appeal.
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That brings us to the question as to what is meant 'prejudice' in Section 11 of the Suits Valuation Act.
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The language of Section 11 of the Suits Valuation Act is plainly against such a view. It provides that over-valuation or under-valuation must have prejudicially affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to overvaluation or under-valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over-valuation or under-valuation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the Section.'
9. In Koopilan Uneen's daughter Pathumma v, Koopilan Uneen's Son Kuntalan Kutty, reported in AIR 1981 SC 1683 upon an interpretation of Section 21(1) of C.P.C., it has been laid down :-
'In order that an objection to the place of suing may be entertained by an appellate or revisional Court, the fulfilment of the following three conditions is essential.
(1) The objection was taken in the Court of first instance.
(2) It was taken at the earliest possible opportunity and in cases where issues are settled at or before such settlement.
(3) There has been a consequent failure of justice. All these three conditions must co-exist.'
10. In the present case none of the three conditions is satisfied and accordingly the petitioner is estopped from raising objection relating to absence of jurisdiction for the first time in this civil revision.
11. Besides, Division Bench decision in Duryodhan Samal v. Smt. Kena Dei (decided on September 2, 1985) was directed to be transmittedto all the District Judges in the State and operative to determine the forum of appeal at the relevant point of time. It cannot be said that the District Court was without jurisdiction when it entertained or decided the Misc. Appeal.
12. As the petitioner is held to be estopped from raising any objection regarding absence of pecuniary jurisdiction in the facts and circumstances of the case, it is not strictly necessarv to consider the controversy about the forum of appeal, but as the main suit is pending and the said question may again be raised at any subsequent stage of the suit or after disposal of the suit, I think it appropriate to consider and decide the question as raised on behalf of the petitioner.
13. Legal position in this regard has been considered in a scries of decisions of the Privy Council, Supreme Court and the High Courts including this Court. The leading decision on the question which has been followed in number of cases is the case of Colonial Sugar Refining Co. Ltd. v. Irving, 1905 App Cas 369. It has been held therein :-
'In principle, their Lordships see no difference between abolishing an appeal all together and transferring an appeal to anew Tribunal. In either case there is interference with existing rights contrary to the well-known principle that Statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.'
The said principle was approved and reiterated by the Supreme Court in AIR 1953 SC 221 Mossain Kasangi Dada (India) Ltd. v. State of M. P. and in AIR 1957 SC 540 (Garikapati Veeraya v. N. Subbiah Choudhry).
14. The principles enunciated in the said decisions was also followed by a Division Bench of this Court in Mani Das v. State of Orissa, reported in ILR (1959) Cut 421. In the said case after an appeal under the provisions of Orissa Estates Abolition.Act was filed before the Board of Revenue on June 25, 1956, Orissa Estates Abolition (Amendment) Act, 1956 came into force on and from June 30, 1956. Under the amended provision an appeal against a decision of an officer other than the Collector would lie to the District Collector and not to the Board of Revenue. After the said amendment Board of Revenue sent the appeal to the Collector, Puri fordisposal and the same was disposed of by the Collector. In the said context it was held therein that :-
'The right of appeal is a vested right and not a mere procedural matter and that right accrues to a person according to the law as it stood on the date of commencement of the litigation.'
15. In Garikapati's case the Supreme Court after discussing all the previous decisions on the point summarised the emerging principles in paragraph 23 of the judgment. It has been held therein ;-
'From the decisions cited above the following principles clearly emerge :
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suitor proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.'
16. A Division Bench of this Court in Duryodhan Samal v. Smt. Uma Devi, reported in (1985) 60 CLT 360 : (AIR 1986 On 30) took the following view at page 35 (of AIR) :-
'irrespective of the date of filing of the suit and irrespective of the date of the judgment passed in such suit, the forum availing for preferring an appeal on the date of presentation of the appeal would be the forum where an appeal should be filed and not the forum which existedon the date of institution of the suit.'
Although the principles as summarised in paragraph 23 of the Garikapati' s case were noted and quoted in paragraph 8 of the judgment the Division Bench mainly relied upon decisions of the Suprme Court in New India Insurance Company Ltd. v. Smt. Santi Mishra, AIR 1976 SC 237, Union of India v. Sukumar Pyne, AIR 1966 SC 1206: (1966 Cri LJ 946), and Dayawati v. Inderjit, AIR 1966 SC 1423 to hold that forum of appeal is a matter of procedure and change of forum has no relation or connection with the substantive right of appeal.
17. Decision of the Division Bench is binding on a single Judge and in spite of his reservation, if any, a single Judge is bound to follow the Division Bench till the same is altered by a larger Bench. However, it has been urged by Mr. R. K. Mohapatra, learned Senior Advocate that the decision in Duryodhan Samal's (supra) being contrary to the decision of the five Judges' Constitution Bench in Garikapali cannot be accepted as good law and binding. He has referred to the observations made by the Supreme Court in paragraph 28 of the judgment in Union of India v. Raghubir Singh, reported in AIR 1989 SC 1933. Alternatively Mr. Mohapatra has submitted that there being a conflict between the Division Bench in Mani Das's case (supra) and in Duryodhan Samal's case (supra) the question of forum of appeal should be referred to a larger Bench.
18. After careful consideration of the decisions relied on by the Division Bench in Duryodhan Samal's case I find it difficult to agree that those decisions expressly laid down any proposition as that propounded in Duryodhan Samal's case, In New India Insurance Co. Ltd.'s case (supra) a claim under Section 110-A of the Motor Vehicles Act was filed before (he Accident Claims Tribunal on July 8, 1967. The concerned accident took place on September 11, 1966. When the accident took place the Claims Tribunals were not constituted and the claims were to he filed before the Civil Court. In the concerned area Claims Tribunal was constituted on March 18. 1967. The question arose whether the forum for filing claim case would be determined with reference to the date of accident or to the date of filing of the claim case. In that context it was held therein that there is no vested right to a particular forurn.before initiation of an action. An action is to be initiated in the forum legally available on the date of institution. Neither Colonial Sugar Mill's case nor Garikapali's case was referred to in New India Insurance Company's case. If the observations made in paragraph 5 of New India Insurance Company's case were adopted then the decision in Garikapati's case would have been different and Article 133 of the Constitution of India would have been applied. Thus observations made in paragraph 5 of the judgment in New India Insurance Company's case are to be, understood in the context of fact situation and issue at controversy in that case and should not be carried beyond the facts of the said case.
The Supreme Court's decision in Union of India v. Sukumar Pyne (supra) was not on the question of right or forum of appeal. It was urged in the said case that an accused had vested right to be tried by a particular Court or a particular procedure prevalent at the time of commission of offence. It was held therein that no person had any vested right in any course of procedure which was prevalent before initiation of the proceeding. In paragraph 9 of the judgment it was observed that no right of appeal was affected because no proceeding under the Criminal Prpcedure Code was started in that case. Said observation indicated that the Supreme Court in that case did not consider the effect of the amendment on the forum of appeal.
In Dayawati v. Inderjit, reported in AIR 1966 SC 1423, Supreme Court reiterated the well established proposition of law that a procedural right can be affected retrospectively even without express provision in the Amending statute. In none of the above decisions it was held that forum of appeal was a matter of procedure and could be altered after right of appeal accrued with the institution of a suit or proceeding. Garikapati's case was decided by a Constitution Bench of five Hon'ble Judges, but the said case was not even referred to or discussed in any of those decisions.
19. It has been laid down by the Supreme Court in P. A. Shah v. Slate of Gujarat, reported in AIR 1986 SC 468 that a( page 480 (of AIR) ;-
'......A decision ordinarily is a decision onthe case before the Court while the principle underlying the decision would be binding as a precedent in a case which comes up for decisionsubsequently. Hence while applying the decision to a later case, the Court which is dealing with it should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of aprecedent should never be expanded unnecessarily beyond the needs of a given situation.......'
The Supreme Court has reiterated the same view in Commissioner of Income-tax v. Sun Engineering Works (P.) Ltd., reported in AIR 1993 SC 43 : (1993 Tax LR 58) wherein it has been held at page 56 (of AIR) :
'....... It is neither desirable nor permissibleto pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'Law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the question which were before this Court........'
20. Thuseach and every observation contained in a judgment is not the ratio of that judgment and cannot be accepted as law laid down. But such observations may give an idea or initiate a thought process for logical development. It appears that the Division Bench in Duryodhan Samal's case derived the idea from para 5 of the New India Insurance Company's case and other cases referred to therein developed the said idea and pronounced its views.
21. Mr. Mohapatra is correct that if there is a direct pronouncement of the Supreme Court any contrary or inconsistent decision of the High Court should be ignored. But the decision of Duryodhan Samal's case cannot be said to be contrary to the decision of the Supreme Court not because of the observations contained in New India Insurance Company's case or any other decisions relied on by the Division Bench, but because of another decision of the Supreme Court in Maria Christine De Souza Soddar v. Maria Zurna Percira Pinto, reported in AIR 1979 SC 1352. Maria Christine's case was not placed before and considered by the Division Bench in Duryodhan Samal's case, but in the said decision Supreme Court took the same view as that in Duryodhan Samal's case.
22. Facts of Maria Christine's case asrelevant for the present purpose, are stated below.
On March 15, 1960 a suit was filed in the Comarca Court at Margao challenging the valuation of the disputed properties contained in a partition deed. The property involved in the suit was of the value of more than Rs. 10,000/-. When the suit was filed on March 18, 1960 Portuguese Civil Procedure Code (in short 'Portuguese Code') was in operation. After liberation of Goa, Daman and Diu, Indian Civil Procedure Code was extended to the territories of Goa, Daman and Diu with effect from June 15, 1966 and corresponding provisions of Portuguese Code stood repealed from the same date. Simultaneously Goa, Daman and Diu Civil Courts Act (Act XVI of 1965) came into force with effect from June 15, 1966. Under Section 24(2) of Act XVI of 1965 the suit pending before Comarca Court at Margao stood transferred and the same was decreed by the corresponding Senior Civil Judge on March 8, 1968. Against the said judgment and decree of the trial Court a First Appeal was filed in the Judicial Commissioner's Court at Goa on June 6, 1968 in accordance with the provisions of Section 22 of Act XVI of 1965 under which an appeal from the decree in a suit of value exceeding Rs. 10,000/- lay before the High Court which meant the Judicial Commissioner's Court in Goa. Under the Portuguese Court the appeal was to be filed in the trial Court itself.
23. In the context of the aforesaid facts, a question arose whether the appeal lay before the Judicial Commissioner's Court, which was the forum under the repealing Act at the time of institution of appeal or in the trial Court which was the forum under the repealed Portuguese Code on the dale of institution of the suit. Supreme Court held that the appeal lay before the Judicial Commissioner's Court. To dispel any doubt the relevant portions from the judgment in Maria Christine's case are quoted below :-
'The contention that since the right of appeal had been conferred by Portuguese Code, the forum where it could be lodged was also governed by the Portuguese Code cannot be accepted. It is no doubt well-settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or any remedy in respect thereof will not be affected by any repealof the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof. This position has been made clear by Clauses (b) and (c) of the proviso to Section 4 of the Central Act XXX of 1965 which substantially correspond to Clauses (c) and (e) of Section 6 of the General Clauses Act, 1897. This position has also been settled by the decisions of the Privy Council and this Court (vide The Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369 and Garikapati Veerayya v. N. Subbiah Choudhary, 1957 SCR 499 : (AIR 1957 SC 540) but the forum where such appeal can be lodged is indubitably a procedural matter and, therefore, the appeal, the right to which has arisen under a repealed Act, will have to be lodged in a forum provided for by the repealing Act. That the forum of appeal and also the limitation for it, are matters pertaining to procedural law will be clear from me following passage appearing at page 462 of Salmond's Jurisprudence (12th Edn.):
'Whether I have a right to recover certain property is a question of substantive law, for the determination and the protection of such rights are among the ends of the administration of justice; but in what Courts and within what time I must institute proceedings are questions of procedural law, for they relate merely to the modes in which the Courts fulfil their functions.'
It is true that under Clause (c) of the proviso to Section 4 of Central Act XXX of 1965 (which corresponds to Section 6(e) of the General Clauses Act, 1897) it is provided that a remedy or legal proceeding in respect of a vested right like a right to an appeal may be instituted, continued or enforced as if this Act (meaning the repealing Act) had not been passed. But this provision merely saves the remedy or legal proceeding in respect of such vested right which it is open to the litigant to adopt notwithstanding the repeal but this provision has nothing to do with the forum where the remedy or legal proceeding has to be pursued if the repealing Act provides new forum where the remedy or the legal proceeding in respect of such vested right can be pursued after the repeal, the forum must be as provided in the repealing Act. We may point that such a view of Section 6(e) of the General Clauses Act, 1897 hasbeen taken by the Rajasthan High Court in the case of Purhsotam Singh v. Narain Singh and State of Rajasthan, AIR 1955 Raj 2 03. It is thus clear that under the repealing enactment (Act XXX of 1965) read with Goa Enactment (Act XVI of 1965) the appeal lay to the Judicial Commissioner's Court and the same was accordingly filed in the proper Court.'
24. The aforesaid decision was rendered after taking into consideration the law enunciated in Colonial Sugar Mill's and Garikapati's case (supra). Maria Christine's case was a direct pronouncement of the Supreme Court on the question. Thus law was settled by the Supreme Court long before the judgment in Duryodhan Samal's case although the said decision was not referred to before the Division Bench. In view of the Supreme Court decision in Maria Christrine's case no exception can be taken to the view expressed in Duryodhana Samal's case.
25. Coming to the merits of the revision it appears that the trial Court prima facie held that the plaintiff-petitioner Nijog has the exclusive right to offer dry bhog to Lord Jagannath. On the basis of such prima facie finding trial Court granted interim order restraining the opposite parties from receiving dry bhog from the pilgrims and other devotees on the pretext of offering the same to the deities. Appeal court below also affirmed the said prima facie finding. But the Appeal Court was of the view that because of existence of plaintiff s right to offer bhog no one can be restrained from collecting bhog if given to him by a devotee for being offered to the deities. Upon such view the appeal Court modified the interim order and restrained the defendants Nos. 1 to 4(a) from interfering with the plaintiffs right to offer dry bhog before the deities in the main temple of Lord Jagannath by collecting such bhog from the devotees in their office premises.
26. The said view of the court below cannot be appreciated. When it accepted the plaintiffs prima facie exclusive right to offer dry bhog before deities in the main temple of Lord Jagannath, it should not have permitted the defendants 1 to 4(a) to collect such dry bhog on the pretext of offering the same to the presiding deities. When the concerned defendants prima facie have no right to offer bhog permitting them to collecting bhog from the devotees on such pleaamounts to allowing them to practise fraud upon the devotees and pilgrims. There was no justification for modifying the order passed by the trial Court's order was quite clear and it restrained the defendants from receiving or collecting dry bhog from, the pilgrims and the devotees on the pretext of offering the same to the deities. It is obvious that if the defendants without having any right to offer the bhog, collect the same they will not be able to offer them to the deities. Victims are the innocent pilgrims and the devotees. When the matter is before the Court it cannot permit a situation in which dry bhog will be collected (sic) will not be offered to the deities.
27. For the foregoing reasons the impugned order is set aside and the order passed by the trial Court is restored. The suit is of the year 1985. Trial Court is directed to dispose of the suit within a period of four months from the date of arrival of the records.
28. Revision is allowed. No order as to costs. Let this order be communicated and the records be sent back to the trial Court immediately.