Fr. Binu Skaria and Mathai v. Fr. Mathews Chemmannapadom and Isaac Abraham

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA,** ## **1943** ## **OP(C) NO. 893 OF 2021** **OS 94/2010 OF SUB COURT, MUVATTUPUZHA, ERNAKULAM PETITIONER/S:** 1 FR.BINU SKARIA AGED 45 YEARS S/O. SKARIA, RESIDING AT KOZHIKOTTU HOUSE, VADAKARA KARA, KOOTHATTUKULAM VILLAGE, KOOTHATTUKULAM, ERNAKULAM-686662. 2 MATHAI, AGED 70 YEARS S/O. CHACKO, RESIDING AT MANGALASSERIL HOUSE, MARIKA KARA, PALAKUZHA VILLAGE, ERNAKULAM686686. BY ADVS. S.K.PREMRAJ SRI.C.ANILKUMAR (KALLESSERIL) SRI.S.K.KRISHNAKUMAR SMT.V.SARITHA SRI.P.M.MANASH SMT.REENU KURIAN ## **RESPONDENT/S:** 1 FR.MATHEWS CHEMMANAPADOM AGED 66 YEARS S/O. MATHAI, RESIDING AT CHEMMANAPADATHU HOUSE, MARIKA KARA, PALAKUZHA VILLAGE, ERNAKULAM686661. 2 ISSAC ABRAHAM, AGED 66 YEARS S/O. ABRAHAM, RESIDING AT ETHUNKACHALIL HOUSE, VAZHITHALA KARA, MANAKKADU VILLAGE, IDUKKI685583. BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.MANJUNATH MENON O.P.(C) No.893 of 2021 **==> picture [16 x 8] intentionally omitted <==** SRI.R.GITHESH SRI.AJAY BEN JOSE SHRI.HARIKRISHNAN S. **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.10.2021, THE COURT ON 13.10.2021 DELIVERED THE FOLLOWING:** O.P.(C) No.893 of 2021 -3- ## **JUDGMENT** Dated this the 13[th] day of October, 2021 **For the citizens of this great democracy, the Constitution of India is the supreme law, which, by virtue of Article 141, makes the law declared by the Supreme Court to be binding on all courts within the territory of India. By Article 142, the Supreme Court has been empowered to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it and any decree so passed or order so made shall be enforceable through out the territory of India.** **2. The century old legal battle between the Orthodox and Jacobite factions of the Syrian Christian community was sought to be ended by the Honourable Supreme Court through its decision in** O.P.(C) No.893 of 2021 -4- _**K.S.Varghese and others v. St.Peter's and St. Paul's Syrian Orthodox Church and others [(2017)**_ _**15 SCC 333]**_ **. The Apex Court declared the Malankara Church to be Episcopal in character and the 1934 Constitution, to prevail over the affairs of the parish churches. The Apex Court also directed both factions to preempt further bickering and unpleasantness for the sake of the sacred religion they profess and to resolve their difference on a common platform. The factions were warned against attempts to create parallel systems of administration of the same Churches resulting in law and order situations, leading to even closure of the Churches.** **3. Unmindful of the declaration in** _**K.S.Varghese**_ **, the factionalism and the legal disputes continued unabated. One such litigation** **was between the petitioners and the** O.P.(C) No.893 of 2021 -5- **respondents in this original petition. The suit; O.S.No.94 of 2010, was filed by the respondents before the Sub Court, Muvattupuzha, with the** ## **following prayers;** _**“(a) a declaration that the 1[st] defendant church is governed by 1934 constitution of the Malankara Orthodox Syrian Church, (b) removal of the 5[th] defendant from the post of vicar-ship and defendants 6 and 7 from the trusteeship of 1[st] defendant church, (c) restraining the defendants 5 to 7 and their men from causing any obstruction to 2[nd] defendant or any other vicar appointed by the Metropolitan of the Kandanadu East Diocese of Malankara Orthodox Church as the vicar of the 1[st] defendant church and (d) directing the 2[nd] defendant to call for an immediate pothuyogam of 1[st] defendant church and conduct election of new managing committee in accordance with 1934 constitution.”**_ **4. In the light of the emphatic declaration** ## **of law in** _**K.S Varghese**_ **, the trial court decreed the suit vide Ext.P1 judgment, as under;** _**“(i) It is hereby declared that the 1[st] defendant church is a constituent parish church of Malankara Orthodox Syrian Church and that the church is to be administered in accordance with the provisions of 1934**_ O.P.(C) No.893 of 2021 -6- ## _**constitution;**_ _**(ii) Defendants 5 to 7 are restrained from acting as vicar/trustees of the 1[st] defendant church and they and their men or agents are restrained by way of permanent prohibitory injunction from causing any obstruction to the 2[nd] defendant or any other vicar appointed by the Metropolitan of the Kandanadu East Diocese of Malankara Orthodox Church as the vicar of the 1[st] defendant church in discharging the duties as the vicar of the church.**_ _**(iii) Defendants 5 to 7 are directed to pay costs of the proceedings to the plaintiffs.”**_ **5. Alleging that the petitioners and others are not abiding by the decree and are continuing to hold holy mass and are committing mischief in the church, while preventing the respondents from entering the church, the respondents filed E.P.No.10 of 2021, seeking to execute the decree in the following modes;** **(i) Issue Order XXI Rule 32 notice to the judgment debtors to show cause why the decree should not be executed against them.** O.P.(C) No.893 of 2021 -7- **(ii) By attachment of properties of the judgment debtors/defendants 5 to 7.** **(iii) By detaining the judgment debtors/defendants 5 to 7 in civil prison.** **6. Along with the execution petition, the respondents filed Ext.P5 application seeking police assistance for meaningful enforcement of the decree. The petitioners filed counter statement questioning the identity of the Church and the power of the court to order interim police protection without resorting to the procedure prescribed in Order 21 Rule 32 of CPC. By Ext.P9 order, the court below repelled the objection and directed the police to give necessary assistance to the first respondent to perform his duties as Vicar of the church.** **7. Sri.S.K.Prem Raj, learned Counsel for the petitioners assailed Ext.P9 order,** O.P.(C) No.893 of 2021 -8- **reiterating the averments in Ext.P6 objection and further contending that the order was passed with undue haste. It is submitted that, in spite of being aware about the expiry of the third respondent in the execution petition, the court below proceeded to pass the impugned order. The other contention is that the very identity of the church being in dispute, the court should not have proceeded to enforce the decree. Relying on the decision of the Honourable Supreme Court in** _**Kanwar Singh Saini v. High Court of Delhi [(2012) 4 SCC 307]**_ **, it is contended that the enforcement of an injunction decree can only be in accordance with the procedure prescribed under Order 21 Rule 32 and the court cannot take recourse to Section 151 of CPC.** **8. Sri.S.Sreekumar, learned Senior Counsel appearing for the respondents countered the** O.P.(C) No.893 of 2021 -9- **contention and submitted that Order 21 Rule 32 is not attracted when police assistance is sought for enforcement of the decree. In support of the contention, learned Counsel placed reliance on the decision of this Court in** _**Johnson Kuriakose v. Fr.Thomas Paul Ramban and others [2019 (1) KLT 6]**_ **. It is submitted that the death of the third respondent will not impact the execution proceedings, since the suit was filed under Order 1 Rule 8 of CPC.** **9. In the nature of the contentions urged, it is appropriate to have a look at Order 21 Rule 32, extracted here under;** _**“32. Decree for specific performance for restitution of conjugal rights, or for an injunction.— (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of**_ O.P.(C) No.893 of 2021 -10- _**obeying the decree and has wilfully failed to obey it, the decree may be enforced 1[in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract or for an injunction] by his detention in the civil prison, or by the attachment of his property, or by both.**_ _**(2) Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the Court, by the detention in the civil prison of the directors or other principal officers thereof, or by both attachment and detention.**_ _**(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force for 2[six months,]if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the Court may award to the decreeholder such compensation as it thinks**_ O.P.(C) No.893 of 2021 -11- _**fit, and shall pay the balance (if any) to the judgment-debtor on his application.**_ _**(4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of 2[six months] from the date of the attachment no application to have the property sold has been made, or if made has been refused, the attachment shall cease.**_ _**(5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed,the Court may, in lieu of or in addition to all or any of the processes aforesaid, direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court, at the cost of the judgment-debtor, and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.”**_ **10. A perusal of Order 21 Rule 32 shows that** **in addition to the processes mentioned earlier, the court can direct the act required to be done** O.P.(C) No.893 of 2021 -12- **by the decree holder or some other persons appointed by the court at the cost of the judgment debtor. No doubt, while acting under Order 21 Rule 32, the court is bound to provide opportunity to the parties to let in evidence regarding the alleged violation. But here the position is different. The respondents had sought police assistance since the petitioners and their men had allegedly prevented the respondents from conducting prayers in the church and had caused damages to the church building. When faced with a valid decree and having failed to obtain any interim order in the appeal, the judgment debtors cannot be allowed to physically prevent the decree holders from enjoying the fruits of the decree. The situation having warranted swift action, the court below was fully justified in exercising its inherent powers. The legal** O.P.(C) No.893 of 2021 -13- **position has been succinctly laid down by a learned Single Judge of this Court in** _**Johnson Kuriakose**_ **, wherein also the dispute was between the same factions and the situation almost similar. The contextually relevant portion of the judgment reads as under;** _**“24. The law on the point is very clear that an order of injunction, if violated, can be enforced by taking punitive action against the contemnor under under Order XXXIX R.2A CPC as well as by enforcement of the order with the aid of police by invoking S.151 CPC.”**_ **The above dictum will be equally applicable when an injunction decree is violated.** **11. In** _**Kanwar Singh Saini,**_ **the trial court** **had initiated contempt action against the defendant for taking inconsistent pleas and for violation of an undertaking. The count referred the matter to the High Court, to be dealt with under the provisions of the Contempt of Courts** O.P.(C) No.893 of 2021 -14- **Act, 1971. The High Court accepted the reference and held the appellant guilty of criminal contempt. The matter was taken in an appeal and the Apex Court found that the suit itself had been disposed of in the light of the undertaking given by the defendant and if the undertaking was violated, the proper procedure is to initiate execution proceedings under Order 21 Rule 32 and not to move for violation of injunction under Order 39 Rule 2A. The decision in** _**Kanwar Singh Saini**_ **having been rendered under entirely different set of circumstances, the dictum laid down therein cannot be made applicable to the case at hand.** **12. The rules of procedure are intended to be handmaid to the administration of justice and they must therefore be construed liberally and in such manner as to render the enforcement of** O.P.(C) No.893 of 2021 -15- **substantive rights, effective. The contention that the court below could not have passed the impugned order since one of the respondents had expired cannot be countenanced since the suit was filed invoking Order 1 Rule 8 of CPC. The dispute regarding identity of the church cannot be raised or considered at the stage of execution.** **13. The above discussion leads to the only conclusion that the impugned order does not warrant interference in exercise of the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.** **In the result, the original petition is** **dismissed.** Sd/- **V.G.ARUN JUDGE** Scl/ O.P.(C) No.893 of 2021 -16- ## **APPENDIX OF OP(C) 893/2021** |PETITIONER|EXHIBITS| |---|---| |EXHIBIT P1|TRUE PHOTOSTAT COPY OF THE JUDGMENT IN| ||O.S.NO.94 OF 2010 DATED 11.1.2021 ON| ||FILES OF THE HON'BLE SUB COURT,| ||MUVATTUPUZHA.| |EXHIBIT P2|TRUE PHOTOSTAT COPY OF THE EXECUTION| ||PETITION FILED VIDE E.P.NO.10 OF 2021| ||ON FILES OF THE HON'BLE SUB COURT,| ||MUVATTUPUZHA.| |EXHIBIT P3|TRUE PHOTOSTAT COPY OF THE REPORT OF| ||THE ADVOCATE COMMISSIONER FILED IN| ||E.A.NO.33 OF 2021 IN E.P.NO.10 OF 2021| ||ON FILES OF THE HON'BLE SUB COURT,| ||MUVATTUPUZHA.| |EXHIBIT P4|TRUE PHOTOSTAT COPY OF THE INTERIM| ||OBJECTIONS TO THE REPORT OF THE| ||ADVOCATE COMMISSIONER IN E.A.NO.33 OF| ||2021 IN E.P.NO.10 OF 2021 ON FILES OF| ||THE HON'BLE SUB COURT, MUVATTUPUZHA.| |EXHIBIT P5|TRUE PHOTOSTAT COPY OF THE APPLICATION| ||SEEKING POLICE PROTECTION FILED VIDE| ||E.A.NO.34 OF 2021 IN E.P.NO.10 OF 2021| ||ON FILES OF THE HON'BLE SUB COURT,| ||MUVATTUPUZHA.| |EXHIBIT P6|TRUE PHOTOSTAT COPY OF THE COUNTER| ||STATEMENT OF THE RESPONDENT NOS.1 AND| ||2 IN E.A.NO.34 OF 2021 IN E.P.NO.10 OF| ||2021 ON FILES OF THE HON'BLE SUB| ||COURT, MUVATTUPUZHA.| |EXHIBIT P7|TRUE PHOTOSTAT COPY OF THE ADDITIONAL| ||COUNTER STATEMENT OF THE RESPONDENT| ||NOS. 1 AND 2 IN E.A.NO.34 OF 2021 IN| ||E.P.NO.10 OF 2021 ON FILES OF THE| ||HON'BLE SUB COURT, MUVATTUPUZHA.| |EXHIBIT P8|TRUE PHOTOSTAT COPY OF THE APPLICATION| ||FILED VIDE E.A.NO.45 OF 2021 IN| ||E.P.NO.10 OF 2021 ON FILES OF THE| ||HON'BLE SUB COURT, MUVATTUPUZHA.| ## O.P.(C) No.893 of 2021 -17- EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE CARBON COPY OF THE ORDER DATED 31.3.2021 IN E.A.NO.34 OF 2021 IN E.P.NO.10 OF 2021 ON FILES OF THE HON'BLE SUB COURT, MUVATTUPUZHA.