Judgment :- 1. This appeal is directed by the first defendant-judgment-debtor against the order passed by the learned Subordinate Judge, Sivaganga in E.P. No. 23 of 971 in O.S. No. 47 of 1963 on the file of his court. In that E.P. the decree-holder sought execution of a compromise decree granted in O.S. No. 47 of 1963 on 13th December 1968 and prayed for delivery of possession of Sri Umamaheswarar Temple at Kambanur along with all the movable and immovable properties belonging to the said temple as well as for recovery of the cash in the hands of the first defendant (appellant) and all his accounts during the period of his management. The appellant resisted the execution on the ground among others that Kambanur Sri Umamaheswarar Temple is a public temple under the control and management of the Hindu Religious and Charitable Endowments Department and its officers, that in the proceedings of the year 1934, to which the predecessors on the plaintiffs and the defendants had been parties, it was decided that the temple was a public temple, that by order dated 2nd June 1959 the first defendant had been appointed by the H.R. & C.E. Department as the trustee of the temple, that the properties of the temple vested in the first defendant in his capacity as such, that as the compromise decree had been granted by a court which had no jurisdiction it was null and void, and that consequently, the execution petition was not maintainable. The Executing Court, while appearing to concede that under S. 108 of the Tamil Nadu H.R. & C.E. Act, (22 of 1959), the court would have no jurisdiction to entertain the suit, if the temple were a public one, proceeded to bold that the basis of the pleadings and the compromise was that it was a private temple, that the appellant had failed to bring to the notice of the court that the temple was a public one, that there was nothing on the face of the pleadings, or the issues or the compromise decree to indicate that the temple was a public one, and consequently the court that granted the decree had jurisdiction to try the suit and dispose it of, and the executing court could not go behind the decree and held that it had been passed without jurisdiction. In this view, the learned Subordinate Judge overruled the objections of the appellant and ordered delivery of possession of the temple and its properties along with the accounts as prayed for. The learned Judge granted a months time to the first defendant for giving delivery and added that on his default, delivery would be effected through court. 2. In order to understand the implications of the controversy between the parties, it is necessary to draw attention to certain established or admitted facts, although those facts have been brought to the knowledge of the court only during the execution proceedings. It is found from Ex. B-1 that sometime in 1934, an enquiry was started under S. 84 of the Madras H.R.E. Act, 1927 to find out whether Sri Umamaheswarar Temple, in respect of which the compromise decree has since been granted was a private temple or a public temple, and if it was a public temple whether it was an excepted or a non-excepted temple. Notice was issued to the then trustees, and SP. RM. RM. Raman Chettiar, the father of the first plaintiff, and SP. RM. N. Ramaswami Chettiar, the father of the first defendant (Appellant), were put forward in the course of the enquiry as managing trustees of the temple and the temple was claimed to be a private one. The Commissioners of the H.R.E. Board passed an order as per Ex. B-1 dated 23rd November 1934 discussing the entire evidence and holding that the temple was a public one subject to the jurisdiction of the Board. By the same order the Board further held that it was an excepted temple. This was an order passed under S. 84 of the Madras H.R.C. Act, 1927, which runs as follows: (1). If any dispute arises as to: (a) whether an institution is a math or temple as defined in this Act; (b) whether a trustee is a hereditary trustee as defined in this Act or not, or (c) whether any property or money endowed is a specific endowments as defined in this Act, or not, such dispute shall be decided by the Board and no court in the exercise of its original jurisdiction shall take cognizance of any such dispute. (2) Any person affected by a decision (1) may, within six months, apply to the court to modify or set aside such decision; (3) From every order of a District Judge, on an application under sub-S. (2), an appeal shall lie to the High Court within three months from the date of the order, (4) Subject to the result of an application under sub-S. 2 or an appeal under sub-S. (3), the decision of the Board shall be final”. It does not appear that the order of the Board was ever challenged in the Civil Court. It has, therefore, become final and binding. Ex. B-2 is a communication sent by the Assistant Commissioner, H.R. & C.E. (Administration) Department, Ramanathapuram District, to SP. RM. N Rama Nachiappa Chettiar (the second defendant herein) on 25th June 1955. XXX [The discussion of the evidence and the facts omitted: Ed.] The Settlement Officer, after discussion of the evidence, ordered under S. 11(a) of the Abolition Act that patta be issued to Sri Umamaheswarar Sivan Koil at Kambanur with the first defendant as the trustee. This order was passed on 27th November 1958. Ex. B-10 dated 13th February 1970. Ex. B-11 dated 27th February 1970, Ex. B-12 dated 16th October 1970, and Ex. B-13 dated 26th October 1970 show that the first defendant has been regularly paying the H.R. & C E. (Admn) Department the contribution and audit fees statutorily payable by Sri Umamaheswarar Temple. 3. It is clear from the above narrative that to the knowledge of the parties to these proceedings, Sri Umamaheswarar temple has been treated since 1934 as a public temple in pursuance of an order made by the Board, which has become binding upon the parties and that from 1934 to 1958, the temple was being managed as an excepted temple by the hereditary trustees, but subject to the superintendence and control of the H.R.E. Board, and that the hereditary trustee (the second defendant) was dismissed by the Board from trusteeship in 1958 and the first defendant appointed by the Board as a fit person to manage the temple and the temple has been under the management of the first defendant as a trustee appointed by the Board ever since. It is against this context that the proceedings launched by the plaintiffs in O.S. No. 47 of 1963 on the file of the court below have to be understood. Ex. It is against this context that the proceedings launched by the plaintiffs in O.S. No. 47 of 1963 on the file of the court below have to be understood. Ex. A-is a certified copy of the plaint filed on 23rd December 1963 in O.S. No. 47 of 1963. It was filed by SP. RM. Karuppayya Chettiar, who died pendente lite and whose widow and minor children were later impleaded as plaintiffs 2 to 6. In this suit, SP.RM.N.RM. Ramaswami Chettiar was impleaded as the first defendant in his individual capacity, and not in his capacity as trustee of Sri Umamaheswarar temple appointed by the H.R.E. Board. Rama Nacbiappa Chettiar, who had been dismissed by the Endowments Board for misappropriation, and who is the elder brother of the first defendant, was impleaded as the second defendant. Nachiammal Achi, the mother of the defendants 1 and 2, was impleaded as the third defendant, and Vadivu Achi, the mother of the first plaintiff was impleaded as the fourth defendant. It was alleged in the plaint that Kambanur Umamaheswarar temple is a private trust, founded and managed by the family of the first plaintiff and the defendants, that the first plaintiffs father was entitled to a moiety of the trust, whereas the first defendants father was entitled to the other moiety, that the temple had been found by Raman Chettiar, the grandfather of the first plaintiff with the aid of his own private funds, that by judgment of the Sub Court, Sivaganga, in O.S. No. 41 of 1936, the first plaintiffs father, on the one band, and the father of the defendants 1 and 2, on the other, became trustees of the temple entitled to manage the properties thereof in turns, and that the defendants 1 and 2 were liable to hand over the temple and its properties to the plaintiffs. On the basis of these and other allegations, the plaintiffs prayed for a direction to defendants 1 and 2 to render accounts to the plaintiffs for the period of their management and to hand over possession of the temple and all the properties belonging thereto and for costs. On the basis of these and other allegations, the plaintiffs prayed for a direction to defendants 1 and 2 to render accounts to the plaintiffs for the period of their management and to hand over possession of the temple and all the properties belonging thereto and for costs. It is astonishing that no reference was made in this plaint to the order passed by the Board in 1934 declaring the suit temple as a public temple or to the several acts of managements and control which the Board was exercising in respect of the temple from 1934 upto 1963, the year in which this plaint was filed. Ex. A-2 is a certified copy of the written statement filed by the first defendant in O.S. No. 47 of 1963. In this written statement, the first defendant pleaded that the first plaintiff was absolutely unfit to be a trustee of the temple because he had no property and he had become involved in debts, that he never acted as trustee, that it is only the father of the defendants 1 and 2, that had been managing the temple for over 17 years, asserting title to absolute trusteeship and that the suit was, therefore, barred by limitation. In paragraph 8 of the written statement, the first defendant blamed the first plaintiff for not stating the circumstances under which the first defendant assumed management as trustee of the plaint temple and added that as the second defendant was mismanaging the temple and had obtained from the settlement authorities a patta for a particular item of property as if it were his absolute property and the first plaintiff was colluding with him, the first defendant appealed against the order and got patta for the property in the name of the temple. In paragraph 9 of the written statement, which is the most important paragraph, the first defendant stated as follows: “The H.R E. Board intervened in the management by the second defendant and suspended the second defendant from the trusteeship and ultimately dismissed him. The Endowments Inspector took possession of movable and immovable properties. The H.R.E. Board was pleased to appoint this defendant trustee. He got possession of the temple and its properties from the Inspector on 26th January, 1958 and ever since he is managing the affairs of the temple as trustee”. The Endowments Inspector took possession of movable and immovable properties. The H.R.E. Board was pleased to appoint this defendant trustee. He got possession of the temple and its properties from the Inspector on 26th January, 1958 and ever since he is managing the affairs of the temple as trustee”. In paragraph 14 of the written statement, the first defendant stated as follows: “It is submitted that the suit is not maintainable as framed. The plaintiff knows the appointment of this defendant in January, 1958, by the H.R.E. Board. He has not taken any steps against the same.” The first defendant wound up his written statement with a prayer: “this Honourable Court may be graciously pleased to dismiss the suit with the costs of this defendant and thus render justice.” A perusal of the written statement shows that it has been drafted either inartistically or ingeniously. It is strange that nowhere in the written statement was an express assertion made that the temple was a public temple, and that consequently under S. 108 of the Tamil Nadu H.R. & C.E. Act, 1959, the Court had no jurisdiction to entertain the suit. It is not known whether the jurisdictional fact was deliberately suppressed by the first defendant or inadvertently omitted. But it must be said in fairness to the first defendant that he has, in two paragraphs in the written statement, expressly referred to the intervention of the H.R.E. Board and the appointment by the Board of the first defendant as trustee of the temple. The objection taken in paragraph 14 of his written statement to the maintainability of the suit as framed, does, by necessary implication, embrace an objection to the jurisdiction of the Court to entertain the suit under S. 108 of the H.R. & C.E. Act, 1959. The complaint in paragraph 14 of the written statement that the first plaintiff had failed to take any steps against the Endowment Boards appointment of the first defendant as trustee of the suit temple, would indicate that the objection taken was that the temple was a public temple under the control of the H.R. & C.E. Department, and that the plaintiffs were, therefore, not entitled to any relief in the Civil Court before setting aside the order of the Board declaring the temple as a public one and appointing trustees on that basis. But, the subsequent conduct of the first defendant in entering into a compromise with the plaintiffs raises the suspicion whether he was not, fraudulently or in collusion with the plaintiffs, seeking to get the imprimatur of the Civil Court to an arrangement which was prohibited by law and which would have the indirect effect of getting round the statutory declaration made by the H.R.E. Board in 1934 to the effect that the suit temple was a public temple. In this state of pleadings, the trial court failed to frame any issue regarding jurisdiction, either because this question was not highlighted in the pleadings or the parties were anxious for some ulterior purpose of their own not to raise this inconvenient issue. But the court, which bad the plain duty of going through the pleadings and settling issues, ought to have at least framed the following issue: Whether the plaintiffs suit is not maintainable for the reason that the temple is a religious institution within the meaning of the H.R. & C.E. Act and the first defendant has been appointed as the trustee thereof by the H.R.E. Board? Had this issue been framed and investigated, the court would certainly have arrived at the conclusion that the temple is a public temple and the suit by a private party asking for recovery of possession of the public temple and its properties from a trustee appointed by the Hindu Religious Endowments Board is clearly unsustainable. Be that as it may, the suit was kept pending for five years, during which period the first defendant as the appointee of the Hindu Religious Endowments Board submitted to the jurisdiction of the Board and was making periodical contributions to the Board in his capacity as the trustee of the temple appointed by the Board. On 13th October 1968, however, he entered into a compromise with the plaintiffs in his individual capacity and the basis of that compromise is flagrantly incompatible with the basis upon which the Board had declared the temple as a public temple in 1934 and had appointed the first defendant as a fit person to discharge the functions of the trustee of the public temple. The relevant clauses in the compromise may be translated as follows:— ‘Compromise entered into between the respondents 2 to 6 on the one hand and the first defendant on the other: In view of the uncertainties of litigation and in order to avoid needless expenditure, we have entered into this compromise: 1) The first defendant shall be in management of the plaint schedule trust and properties as turn managing trustee for the period from 1st July 1969 to 30th June 1971; (2) on 1st July 1071, the first defendant shall hand over management of the said properties to the second plaintiff, Who will be in management as turn managing trustee for the period from 1st July 1971 to 30th June to 73 (3), the first defendant and the second plaintiff shall subsequently be in management by turn for two years each. After the expiry of each turn, the turned shall hand over to the succeeding tutndar all the properties of the trust and the accounts therefor (4) Neither the plaintiffs 3 to 6, the children of the first plaintiff nor the defendants 2 to 4 shall have the right of management; (5) The second plaintiff shall adopt a son and on his attaining majority, her adopted son shall get the right of management. If the second plaintiff fails to adopt a son during her life time the first defendant or his heir shall be entitled to the management turn of the second plaintiff after her life time; (6), the first defendant shall not be liable to render accounts for the period upto 1st January 1969, 7 if necessary, the decree granted in the suit may be put in execution and costs recovered by the succeeding managing trustee from the prior managing trustees; (8) Only the movables mentioned in list filed by the first defendant along with his written statement shall be delivered to the Endowments Inspector”. The last mentioned clause relating to delivery of movables to the Endownments Inspector, would emphasise the consciousness of the parties that they were aware of the fact that the temple was a public temple and that they had certain obligations under the statute to hand over the movables of the temple to the Endowments Inspector. The last mentioned clause relating to delivery of movables to the Endownments Inspector, would emphasise the consciousness of the parties that they were aware of the fact that the temple was a public temple and that they had certain obligations under the statute to hand over the movables of the temple to the Endowments Inspector. It is indeed astonishing that the first defendant, who had been appointed by the Eadownments Board as the trustee of a public temple, should have entered into this compromise behind the back of the Endownments Board and in violation of she mandatory provisions of the H.R. & C E. Act, 1959. It is difficult to divine the motive behind the compromise. One wonders if the clause relating to the adoption by the second plaintiff of a son holds the key to the understanding of the motive, which constrained the fist defendant to enter into this compromise. However, when this compromise decree was put in execution, the first defendant filed an elaborate counter in which he disclosed unambiguously all the facts which would oust the jurisdiction of the Sub Court to entertain the suit or to grant a compromise decrees therein. What then will be the effect of directing execution of this compromise decree? A dispute arose even in 1934 as to she character of the suit temple and under S. 84 of the Madras H.R.E. Act, 1927, the Board decided the dispute and held that the suit temple is a public temple. Under that Section, no court in the exercise of its original jurisdiction shall take cognizance of any such dispute once the dispute has been decided by the Board. The order of the Board was not challenged by an application within six months to the District Judge under Sub. S. (2) of S. 84 of the Madras H.R.E. Act, 1927, nor by an appeal to the High Court within three months from the date of the order of District Judge, as per sub-S. (3) of S. 84 of the Act. The decision of the Board has, therefore, become final. Under S. 18 of the Madras H.R.E. Act, 1927, the general superintendence of all religious endowments including the suit temple within the territorial jurisdiction of the Board vested in the Board. The decision of the Board has, therefore, become final. Under S. 18 of the Madras H.R.E. Act, 1927, the general superintendence of all religious endowments including the suit temple within the territorial jurisdiction of the Board vested in the Board. It is in pursuance of the powers under the Act that the Board removed the second defendant, who was the then hereditary trustee and appointed the first defendant as trustee of the temple. The jewels, movables and immovables belonging to the temple are in the custody of the first defendant in his capacity as trustee. The execution petitioners, who have unauthorized appointed themselves as nun trustees under the compromise decree and who have been characterised as bankrupts by the first defendant in his answer, now seek to recover possession of all the valuables belonging to the temple. If execution is ordered and the appellant, who is the lawful appointee of the H.R.E. Board, is directed to hand over the temple and in properties to the decree holders, grave hardships will be caused to the members of the public worshipping in the temple, and the statutory authority of superintendence and control vested in the H.R. & C.E. Department will be set at naught. Further, when the bailiff of court goes to the temple to effect delivery of possession, it will be open to the H.R. & C.E. Department to obstruct him and intervene with a claim that the entire temple and its properties vested in the Department. The moment such a claim is preferred, the court will have no option but to allow it in view of the facts established in the execution proceedings. Instead of the H.R. & C.E. Department itself intervening with a claim, it is open to the first defendant-appellant in his capacity as trustee appointed by the Board to prefer a claim in that capacity, in which case also the court will have to allow the claim. 4. Another complication is, the first defendant has a dual capacity. He entered into the compromise only in his individual capacity and certainly net in his capacity as trustee appointed by the Board. In execution, be can, in his capacity as trustee appointed by the Board, bring to light the real facts and frustrate the execution proceedings, in which case the compromise decree granted by the court will become brutum fulmen. He entered into the compromise only in his individual capacity and certainly net in his capacity as trustee appointed by the Board. In execution, be can, in his capacity as trustee appointed by the Board, bring to light the real facts and frustrate the execution proceedings, in which case the compromise decree granted by the court will become brutum fulmen. The court ought not to direct execution of a decree knowing in advance that execution will prove infectious. The question raised by the appellant in the execution petition in his capacity as trustee appointed by the Board is a question which the court has to decide under Sec. 47, C.P.C. It may be that the first defendant in his personal capacity may be estopped from raising the contention that the decree is not binding upon him. But in his capacity as a trustee appointed by the Board, he is certainly not estopped. If he is not estopped, it is the duty of the court to investigate the facts disclosed by him in execution and refuse to execute the decree in the light of the facts, which were suppressed from the knowledge of the court at the time the compromise decree was granted, and which, however, have been brought to the courts notice in execution of this illegal decree. It is the duty of the court to refuse execution on another ground as well. The parties cannot by agreement, give the court jurisdiction which the Legislature has enacted they are net to have. If, on the face of it, the decree does not show the existence of a jurisdictional fact, the executing court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial Courts jurisdiction to pass the decree, (vide Nagindas v. Dalpatram A.I.R. 1974 S.C. 471. The moment it finds the there was no such foundation it is open to the executing court to hold that the decree is not executable, because the court that granted it had no jurisdiction to pass it. In this case, the compromise decree itself refers to the Endowments Inspector and provides for delivery of possession of certain movables belonging to the temple to the Inspector. In this case, the compromise decree itself refers to the Endowments Inspector and provides for delivery of possession of certain movables belonging to the temple to the Inspector. If the suit temple was a private temple, there was no need to refer in the compromise decree to the Endowments Inspector and to the duty to hand over certain temple movables to him. The reference in the decree prima facie though obliquely shows that the temple was subject to the supervision of the Endowments Department and as no private temple would be so subject the reference necessarily suggests that the temple which is the subject matter of the compromise is a public temple. I have also pointed out certain passages in the written statement of the first defendant which attacked the maintainability of the suit itself on the ground that he had been appointed by the Endowments Board and that the plaintiff could not without getting the order of the Endowments Board set aside, institute a suit for the reliefs which he had actually prayed for in the plaint. It is thus found that even without ravelling beyond the original records of the trial court it cannot be ascertained that the temple was a public temple, which vested in the Endowments Department and no suit for recovery of possession thereof was entertain able by the civil court except in accordance with the special provisions made in the Act. 5. Learned counsel for the appellant says that the executing court ought not to go beyond the four corners of the decree to find out whether the court that passed the decree has jurisdiction. A Division Bench of this Court held in Swamy v. Mohideen I.L.R. 1958 Mad. 622; 71 L.W. 383 (D.B.) that an executing Court can look into the pleadings in the case to decide the question at issue whether the court had no jurisdiction at all to pass the decree. 6. Another Division Bench of this court has held in Raja of Kalahasti v. Vekatadri Rao 26 L.W. 386 that although the ordinary rule may be that an executing court cannot go behind the decree, still if there is a prohibition enacted by the Legislature on considerations of public policy that prohibition is absolute and must be given effect to when the executing court has brought it to its notice. 7. 7. In fact, Pandrang Row, J., has in Srirangachariar v. Annamalal Chettiar 42 L.W. 485 gone so far as to say: “If as was decided in Rajah of Kalahasti v. Venkatadri Rao 26 L.W. 386 where the execution of a decree would involve the infraction of a provision of law enacted in the public interest, the executing court had the power to decide whether execution should be allowed as directed in the decree, it would follow that the executing court in order to decide this question whether execution should proceed or not had necessarily the power of taking such evidence as might be necessary to decide it” 8. In Janendra Mohan Bhaduri and another v. Rabindra Nath Chakravarthi 64 M.L.J. 341; 37 L.W. 327 the judicial Committee held that where a decree was based upon an award made under the provision of the Indian Arbitration Act 1899 an objection in the course of the execution proceedings that the decree was made without jurisdiction since under the Indian Arbitration Act 1899, there is no provision for making a decree upon an award was competent. Looking at the problem from whatever point of view, it is clear that the court must refuse to execute the decree in question. It is open to the executing court to refuse execution of the decree which has been granted by a court which had no jurisdiction to grant it. Further, the execution of this decree is fraught with dangerous consequences to a public temple the interests of which were not lawfully represented at the time when the decree was granted. It is right to treat the objections of the appellant in execution as objections raised lawfully on behalf of the temple and regarding it as a claim competently made by the trustee of the temple on its behalf, to allow the claim which is amply supported by the evidence on record and to dismiss the execution petition. 9. For the reasons stated supra, I reverse the order of the court below, direct the dismissal of the execution petition and allow the appeal with costs throughout. Leave granted.