Report No. 17
46. Section 34.-
In order to give a speedy remedy, we think it necessary to enlarge the scope of section 34 on lines analogous to the originating summons procedure in England, which has been followed and adopted in the original side rules of the Bombay and Madras High Courts. Many questions which arise in the course of the administration of the trust may be easily disposed of on an application instead of driving the parties to a suit. We, therefore, recommend that the scope of the section may be enlarged.
At the same time, we recommend a restriction to the effect that the court shall not determine questions involving charges of breach of trust unless the parties have consented for the decision of the question in the proceedings by an application under section 34. Similarly, the court would not decide claims made adversely to the trust and involving the investigation of the title of third parties. Further, if any question of importance arises for decision and the court is of opinion that it should not be disposed of in a summary manner, it may refer the parties to a suit. With these safeguards we think that the amplification of section 34 should work as a boon to the parties concerned.
47. We have provided for one appeal against the decision of the court under section 34. Orders under section 34 of the Act are not now appealable.1 As we have now proposed2 to enlarge the scope of section 34 and make the jurisdiction and the procedure more or less analogous to that of the Chancery Division of the High Court in England under Order 55 (the procedure relating to originating summons), we think it is necessary to provide for an appeal against the decision of the court from an order made on the application. In England such orders are appealable under Order 55, rule 14(d). But appeal lies only with the leave of the Judge or the court of appeal. We think that it would suffice if the order is made appealable but without any restriction.
1. Trimbak Mahadev v. Narayan Hari, ILA 33 Born 429 (432).
2. See para. 46, supra.
48. We are of the view that it will be beneficial if the provisions of the section are made applicable, as far as may be, to proceedings before the court under sections 11, 22, 32, 36, 41, 45, 46, 49, 53, 59 (as proposed) 72, 73 and 74 of the Act and to proposed section 73A, and we recommend accordingly.
Section 34A (To be added).-This may be added on the lines already indicated.1
1. See para. 23, supra.
Back
