JUDGMENT : Narasimham, C.J. - These two appeals arise out of an exparte judgment dated 7-11-1955 given by the Subordinate Judge of Berhampur under the following circumstances: Respondent No. 1 filed the suit under appeal on 5-7-1954 in which he stated that the disputed institution was either a Temple or Math. He also claimed to be the hereditary trustee of the said Math or temple and that right vested in him. He further alleged in paragraph 4 of the plaint that the Appellant and the Commissioner of Hindu Religious Endowments denied his claim to be the hereditary trustee and Appellant was appointed as an interim non hereditary trustee u/s 60 of the Orissa Hindu Religious Endowment Act, 1939 on 9-6-1954. On these allegations he claimed the following relief: The Plaintiff therefore prays for judgment and decree (a) declaring that the Plaintiff is the Mahant and hereditary trustee of the suit math or temple, (b) for costs of the suit and (c) such other or further relief as the court deems fit to grant in the circumstances of the case. In the written statement both the Appellant and the Commissioner of Hindu Religious Endowments took the plea that the suit was premature inasmuch as an application u/s 64(1) of the aforesaid Act was then pending with the Commissioner. But on the date fixed for trial they were ex parte and hence the trial court after examining one of the disciples ?f the Respondent passed an ex parte decree. In F.A. 58 of 1956 this ex parte decree has been challenged on the ground that on the Plaintiff?s own case as disclosed in the plaint, the suit was not maintainable. But apart from filing a regular appeal against the said ex parte decide it appears that the party applied for setting aide that decree under Order 9, Rule 13, Code of Civil Procedure. That application was dismissed by the learned Additional Subordinate Judge on 6-10-1956 and against this order of dismissal M.A. 90 of 1956 has been filed. 2. Mr. But apart from filing a regular appeal against the said ex parte decide it appears that the party applied for setting aide that decree under Order 9, Rule 13, Code of Civil Procedure. That application was dismissed by the learned Additional Subordinate Judge on 6-10-1956 and against this order of dismissal M.A. 90 of 1956 has been filed. 2. Mr. S. Mohanty for the Appellant contend that on the facts stated in the plaint, the suit before the learned Subordinate Judge was barred and that the proper remedy of the Respondents was by way of an application u/s 64(1) of the Orissa Hindu Religious Endowments Act, 1939, or by way of continuing the application under that section which was said to be pending then. In our opinion, this contention is well founded, Section 64(1) of that At provided that if there is a dispute as to whether an institution is a Temple or a. Math, as defined in the Act or whether it is an "excepted temple" such a dispute shall be decided by the Commissioner of Hindu Religious Endowments. Sub-section (2) confers on the party aggrieved by the decision under Sub-section (1) of Section 64, the fight to bring a regular civil suit in the appropriate court. This means, by necessary implication that no party can bring a suit straightaway in a Civil Court, for a declaration that an institution is a math or a temple as defined in the Act or whether it is "excepted temple", without first applying to the Commissioner under Sub-section (1) of that section. The definition of the expression "excepted temple" in clause (5) of Section 6 shows that when a person is held to be the hereditary trustee of a temple, that temple would be an excepted temple. Hence by seeking for a declaration that the Respondent is a hereditary trustee of the institution, he was asking for a declaration that, the temple in question was an excepted temple. The reliefs that he has asked for in the plaint are those contemplated in Sub-section (1) of Section 64, and his applying to the Civil Court direct .for such relief was clearly non-maintainable. Again, the question as to whether a particular institution is a math or a temple is one which has to be decided in the first instance ?by the Commissioner u/s 64(1) of the Act. Again, the question as to whether a particular institution is a math or a temple is one which has to be decided in the first instance ?by the Commissioner u/s 64(1) of the Act. Even in ex parte suits the trial Court has the duty to examine whether on a perusal of the pleadings the suit itself is maintainable. In this case the trial Court has over looked this aspect of the matter. 3. For these reasons we allow First Appeal No. 58 of 1956 set aside the judgment and decree of the lower Court and dismiss the Respondent?s suit as not maintainable. But there will be no order for costs. 4. In view of the above order in First Appeal No. 58 of 1956, Mr. S. Mohanty does not press Miscellaneous Appeal No. 90 of 1951 which is also dismissed but without costs. Misra, J. 5. I agree. Final Result : Dismissed