Chacko Kunjappan and others v. Babu Paul and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 26TH MAY 2011 / 5TH JYAISHTA 1933 Ex.FA.No. 34 of 2010() ---------------------AGAINST THE ORDER IN E.P.NO.1/2008 IN OS.1/1979 .................... ## APPELLANTS/RESPONDENTS 1 TO 3,6,14 ------------------------------------------ 1. CHACKO KUNJAPPAN, AGED 80, NADUKUZHIYIL HOUSE, ELAMBRA, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 2. N.V.KURIAKOSE, AGE NOT KNOWN, NADUKUZHIYIL HOUSE, RAMALLOOR (P.O.), NADUKUZHIYIL HOSUE, KOTHAMANGALAM, ERNAKULAM DISTRICT. 3. FR.JOSE JOHN, AGED 58, SON OF YOHANNAN, PARANAYIL HOUSE, BHOOTHATHAN KETTU, KEERANPARA VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT. 4. FR.ABRAHAM, AGED 48 YEARS, SON OF VARKEY, ALIYATHKUDY, RAYAMANGALAM P.O., PERUMBAVOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 5. ABY, AGED 41, SON OF VARKEY, CHELATTKALAPURA HOUSE, THRIKKARIYOOR VILLAGE AND IPO, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 6. P.M.ELDHO, AGED 58, SON OF MATHAI, PALAPPILLIL HOUSE, KARUKADOM VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 7. JOHNSON, AGED 43, SON OF KURIAKOSE, THEKKILKATH HOUSE, KUZHIPPILLY P.O., KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 8. JOSEPH, AGED 57, SON OF KURIAKOSE, KARIMKUTTIPURAM HOUSE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. EX.FA.NO.34/2010 9. KURIAKOSE, AGED 47, SON OF PAULOSE, CHUNDATT HOUSE, NELLIKKUZHI P.O., KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 10. SALIM, AGED 51, SON OF CHERIAN, MALIYIL HOUSE, COLLEGE P.O., KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 11. SHIBU, AGED 42, SON OF KURIAKOSE, PANAKAL HOUSE, KUTHUKUZHI P.O., KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 12. THOMAS, AGED 47, SON OF YACOB, KOTTAMANGAL HOUSE, KOTHAMANGALAM P.O. AND TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.P.J.PHILIP SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS/PETITIONERS 3, 4 AND RESPONDENTS 4 AND 5 -------------------------- 1. BABU PAUL, AGED 35, SON OF PAUL, KUTHUKUZHY HOUSE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 2. K.V.JAMES, AGED 48, SON OF K.E.VARKEY, KATTANGAL HOUSE, THANKALAM P.O., KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. 3. FR.ABRAHAM, AGED 59 YEARS, SON OF GEEVARGHESE, NEDUMTHALLIL HOUSE, ALATTUCHIRA P.O., KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 4. FR.C.K.GEEVARGHESE, AGED 64, SON OF KURIAKOSE, CHERIACHERIL HOUSE, VENGANOOR (E), KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. ADV. SRI.K.K.APPU FOR R1-2 SRI.B.G.BHASKAR FOR R1-2 THIS EXECUTION FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **A.K.BASHEER & P.Q.BARKATH ALI, JJ.** - - - - - - - - - - - - - - - - - - - - - **Execution First Appeal No. 34 OF 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26[th] day of May, 2011 ## **JUDGMENT** ## Basheer, J. This long drawn legal battle which commenced more than three decades ago does not seem to have an end in sight. A suit (O.S. No.1/1979) instituted by two parishioners of Malankara church way back 1979 with regard to the episcopal rights of Catholic Malankara Metropolitan culminated in a decree passed by a Division Bench of this court which was later modified/confirmed by the Apex Court on June 20, 1995. The legal tussle has continued even thereafter, is borne out by the records. But we do not propose to refer to all those proceedings at this stage. 2. An Execution Petition as E.P.No.1/2008 was instituted by the respondents in this appeal before this court alleging that the additional Judgment Debtors who were acting as trustees in the plain schedule church were patently violating the decree. The petition was filed under Order XXI Rule 10, 11 (2) and 15(1) of Code of Civil Ex.F.A.No.34/2010 2 Procedure. The primary prayer in the petition was to issue appropriate orders to enforce the decree by detaining Judgment Debtor No.2 and additional Judgment Debtors 3 to 14 in Civil Prison and by attachment of their properties. 3. The Judgment Debtors stoutly opposed the maintainability of the Execution Petition and contended that there was no executable decree at all and therefore the petition had to be dismissed in limine. 4. The learned Single Judge after considering the rival contentions of the parties proceeded to consider the question whether the decree is executable or not. The learned Judge answered the above question in the affirmative overruling the preliminary objection raised by the Judgment Debtors and held that the Execution Petition was maintainable. The above order passed by the learned Single Judge is under challenge in this appeal filed under Section 5(1) of the Kerala High Court Act. 5. Sri.B.G.Bhaskar,learned counsel for the respondents/decree holders has raised a preliminary objection as regards the maintainability of the appeal itself. The primary contention raised by Ex.F.A.No.34/2010 3 him is that the learned Single Judge has not passed any order in exercise of original jurisdiction and therefore Section 5 of the High Court Act is not attracted at all. He submits that the learned Single Judge has passed the impugned order only in exercise of the “execution jurisdiction”, nothing more, nothing less. He further submits that it will be a fallacy to say that there is no executable decree at all. Learned counsel submits that the learned Judge has made it abundantly clear in the impugned order itself that “the issue as to whether the mode of execution sought can be granted or not and whether the decree holders are entitled to execute the decree and whether additional judgment debtors shown in the execution petition can be made liable for breach of decree etc. are matters which are not germane for consideration now.” The learned Judge further stressed that the only question that had been considered was regarding the executability of the decree as contemplated under Order XX1 Rule 22 of the Code. It is thus contended by the learned counsel that the apprehension of the appellants that the issue has been concluded once and for all is totally misconceived. Ex.F.A.No.34/2010 4 6. We have heard Sri.Rajeev Dhavan and Sri.V.Chithambaresh, the two learned senior counsel who appear for the appellants. It is contended by them that the appeal as laid is undoubtedly maintainable under Section 5 of the Act. According to the learned Senior Counsel the learned Single Judge has for all practical purposes decided the entire issue against the appellants and what remains now is only, (as the learned Single Judge himself has observed) the “ mode of execution”. It is contended by the learned senior counsel that the primary issue that is at large is whether the respondents who have styled themselves as Decree Holders have any manner of right to execute the decree against the appellants who are acting as trustees of the plaint schedule church. He further submits that the execution petition as laid is thoroughly misconceived and the learned Single Judge ought to have dismissed the same in limine. According to the learned senior counsel the larger issues involved in the case were dealt with by the learned Single Judge in an extremely lackadaisical and casual manner and ultimately a faulty conclusion has been that there is an “executable decree”. This finding by the learned Ex.F.A.No.34/2010 5 the learned Judge will cause grave prejudice to the appellants in as much as the entire issue has now become fait accompli; and what remains now is only the mode of execution as observed by the learned Single Judge in the impugned order itself. 7. Our attention has been invited to several decisions by learned counsel appearing on both sides, viz: ## **Padmanabhan v. Shriram Chits & Investments ( P) Ltd.** **( 1995(2) KLT 61.** **Manoj v. Infant Jesus Church ( 1999 (3) KLT 521)** **Damodaran v. Federal Bank Ltd. ( 2002(2) KLT 377(F.B.) Gujarat Agro Industries Co.Ltd. v. The Municipal** **Corporation of the City of Ahmedabad and others ( AIR 1999 Supreme Court 1818)** ## **Philip Koshy M. v. Prof. Saji Chacko ( 2010 (2) KHC 969(DB)** 8. Arguments have also been advanced by both sides on the question whether the impugned order was passed by the learned Single Judge in exercise of “original jurisdiction” or “execution jurisdiction”, if we may put it so. In the course of the arguments our attention has also been drawn to the various Rules in Order XXI of the Code Ex.F.A.No.34/2010 6 especially Rule 58, 97, 98 etc. But in our view we need not deal with those contentions at this stage for the following reasons. 9. It cannot be disputed, particularly going by the complex nature of the interse dispute between the two rival fractions, that the various clauses in the decree will call for a closer look at the time of execution. In other words, some of the clauses in the decree are such that they cannot be executed unless there is some kind of adjudication as to how they are to be harmonised especially since, it is the admitted position that the original Decree Holders and Judgment-Debtors are no more. The appellants and the respondents in this appeal are fighting the litigation in representative capacity. Therefore, it necessarily follows that the entire gamut of the issues that may crop up will call for a deeper scrutiny. 10. In that view of the matter, we do not find any reason why the parties cannot be directed to raise all their contentions before the learned Single Judge before whom the execution petition is pending. In our view the learned Single Judge can be directed to decide the entire issue afresh after affording sufficient opportunity to both sides to Ex.F.A.No.34/2010 7 raise all their contentions. It will undoubtedly be open to the parties to adduce evidence in the matter. 11. Our attention has been invited to some of the observations made by the learned Single Judge in the impugned order, particularly relating to the executability of the decree. It is true that the learned Single Judge has held that the execution petition is maintainable. We uphold the above view. But we are satisfied that the question touching upon the executability of the decree as it is now available, especially after the conduct of elections on which the Judgment-Debtors have placed much reliance has to be left open. We make it clear that the said question along with all other related issues shall be decided by the learned Single Judge afresh untrammelled or uninfluenced by any of the observations made in the impugned order. With these directions, the appeal is disposed of in the above terms. ## **A.K.BASHEER, JUDGE** ## **P.Q.BARKATH ALI, JUDGE** sv. Ex.F.A.No.34/2010 8 Ex.F.A.No.34/2010 9