OP(C).No.1486/2014 (O) / Santhimadom Sivakshhethram and K. Sreedharan Pillai v. Chellamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **FRIDAY, THE 10TH DAY OF MARCH 2017/19TH PHALGUNA, 1938** ## **OP(C).No. 1486 of 2014 (O)** ## **--------------------------EA 81/2013 IN EP 176/2006 IN OS 252/2002 ADDITIONAL MUNSIFF'S COURT, NEDUMANGAD** **------** **PETITIONER(S):** **-------------** **1. SANTHIMADOM SIVAKSHETHRAM, VENJARAMOODU, REPRESENTED BY ITS SECRETARY, K.SREEDHARAN PILLAI, S/OE.KESAVAPILLAI, P.K.M.BUILDING, MAVIYAM, VENJARAMOODU,THIRUVANANTHAPURAM.** **2. K.SREEDHARAN PILLAI,** - **S/OE.KESAVA PILLAI, P.K.M.BUILDING,** - **MAVIYAM, VENJARAMOODU.** - **BY ADVS.SRI.T.R.RAJAN** **SRI.S.SREEKUMAR (VENJARAMOOD)** **RESPONDENT(S):** - **--------------** ## **1. CHELLAMMA,** **SUKUMARAN BHAVAN, PERUMKOOR, VEMBAYAM P.O,PIN-695 615.** **2. RADHAMMA, D/O.BHASKARA PILLAI, SUKUMARA BHAVAN, PERUMKOOR, VEMBAYAM P.O,PIN-695 615.** **3. P.G.SUKUMARA PILLAI,** - **PLAVILA VEEDU, MAVELIKONAM, MAVIYAM, VENJARAMOODU,PIN-695 607.** **4. PREMKUMAR,** - **S/O.APPUKUTTAN PILLAI, PANIKKARAKONATH VEEDU, MANALIMUKKU, VENJARAMOODU, THIRUVANANTHAPURAM PIN-695 607.** **5. PREMAKUMARY, D/O.SUMATHY AMMA, PANIKKARAKONATH VEEDU, MANALIMUKKU, VENJARAMOODU, PIN-695 607.** **6. OMANA, D/O.SARAMMA, PANIKKARAKONATH VEEDU, MANALIMUKKU, VENJARAMOODU,PIN-695 607.** **7. SUSEELA D/O.SARASAMMA, PANIKKARAKONATH VEEDU, MANALIMUKKU, VENJARAMOODU,PIN-695 607.** **OPC 1486 OF 2014:** ## **----------------** ## **8. GIRIJA** - **D/O.SASRASAMMA, PANIKKARAKONATH VEEDU, MANALIMUKKU, VENJARAMOODU,PIN-695 607.** ## **9. SUDHAKARAN,** - **S/O.SASRASAMMA, PANIKKARAKONATH VEEDU, MANALIMUKKU, VENJARAMOODU,PIN-695 607.** ## **10. BABU,** - **S/O.SASRASAMMA, PANIKKARAKONATH VEEDU, MANALIMUKKU, VENJARAMOODU,PIN-695 607.** **R1-R3 BY ADVS. SRI.M.H.HANIL KUMAR SRI.N.G.GIREESAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.V.** **OP(C).No. 1486 of 2014 (O) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT.P1.TRUE COPY OF THE SETTLEMENT DEED NO.2694/1983 DATED 11/8/1983.** - **EXT.P2.TRUE COPY OF THE PLAINT IN OS NO.252/2002 ON THE FILE OF THE MUNISIFF'S COURT, NEUDMANGAD** - **EXT.P3.TRUE COPY OF THE WRITTEN STATEMENT IN S 252/2002 ON THE FILE OF THE MUNISIFF'S COURT, NEDUMANGAD.** - **EXT.P4.TRUE COPY OF THE JUDGMENT DATED 6/9/2005 IN OS NO.252/2002 OF THE FILE OF THE MUNISIFF'S COURT, NEUDMANGAD.** - **EXT.P5.TRUE COPY OF EP 176/2006 IN OS NO.252/2002 OF THE FILE OF THE MUNISIFF'S COURT, NEUDMANGAD.** - **EXT.P6.TRUE COPY OF EA 81/2013 IN EP 176/2006 IN OS NO.252/2002 OF THE FILE OF THE ADDITIONAL MUNISIFF'S COURT, NEUDMANGAD.** - **EXT.P7.TRUE COPY OF THE OBJECTION SUBMITTED BY THE FOURTH JUDGMENT DEBTOR TO EXT.P6.** - **EXT.P8.TRUE COPY OF THE ORDER DATED 10/3/2014 IN EA 81/2013 IN EP 176/2006 IN OS NO.252/2002 OF THE FILE OF THE ADDITIONAL MUNISIFF'S COURT, NEUDMANGAD.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **R2(A) COPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRP NO 891/2008 DATED 16.10.2009.** **R2(B) COPY OF THE JUDGMENT IN WPC NO 3824/2010 DATED 16.2.2012.** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** **A.MUHAMED MUSTAQUE, J.** ========================= ## **O.P.(C).No.1486/2014** ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10[th] day of March, 2017 ## **J U D G M E N T** In a suit for injunction to manage the affairs of the family temple, an injunction was granted restraining the defendants from interfering with the right of the second plaintiff to manage and conduct the affairs of the plaint schedule property. Admittedly, the affairs of the temple has to be managed by the senior-most member of the family. The first plaintiff in the suit was the Temple. The second plaintiff was styled as the Secretary of the committee managing the affairs of the Temple. There was also no dispute with regard to the fact that the first defendant was the senior-most member of the family at the time of filing the suit. However, pending suit the first defendant died. His legal heirs are not brought on record for the reason that the right to sue does not survive to the legal heirs. In the suit there was a certain finding that the second plaintiff is the seniormost member of the family subsequent to the death of the first defendant. However, there was also a discussion that the first defendant and others acknowledged the second plaintiff as the Secretary of the committee to manage the affairs of ## **`OPC 1486/2014`** ## **-:2:-** the temple. Taking note of the fact that the second plaintiff was the Secretary, an order of injunction was granted. Thereafter, an execution petition was filed alleging violation of decree of injunction. The execution court found that the decree was violated. This was carried before this court in revision in C.R.P.No.891 of 2008. In the revision petition, the defendants contended that the second plaintiff was removed from secretaryship of the committee and therefore, the execution petition was not maintainable at his instance. Therein, this court observing that an enquiry in that regard is material to determine whether the judgment debtors had violated the decree, remanded back the case to the execution court. Before the execution court the second plaintiff filed an application to amend the execution petition styling himself as a senior member of the family so as to maintain the execution petition. That was disallowed. It was challenged before this court in W.P.(C).No.3824 of 2010 by the plaintiffs. This court affirmed the order of the execution court holding that the proposed amendment to the execution petition is not maintainable before the execution court and if at all the second plaintiff has got a case that beyond the capacity as the Secretary, he should be allowed to execute the decree as the eldest member of the family, it can be allowed only if the decree provided so. It was also observed ``` OPC 1486/2014 ``` ## **-:3:-** by this court in the above judgment that in the absence of any such provision in the decree, the proposed amendment to the execution petition was rightly turned down by the court below. Thereafter, the second plaintiff filed an application under Section 152 CPC to amend the decree to the effect that the relief as granted to him is in the capacity of a seniormost member of the family. That application was disallowed by the by the court below. It is challenging this order, the petitioners have approached this court. 2. The learned counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court in **Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and others [AIR 2003 SC 351]** and the judgments of this court in **Unnikoya v. Nabeesa [1991 KHC 414]** and **Deputy Chief Engineer (Construction), Southern Railway v. Jolly Mattappillil and Another [2012 (1) KHC 622]** . It is argued that the application for amendment is maintainable before the execution court and it is also argued that rectification of mistakes by an amendment is necessary to give effect to the judgment and therefore, the court shall allow such application. On the other hand, the very case of the judgment debtors is that the suit itself was filed in the capacity as a Secretary and the decree was granted in favour of ``` OPC 1486/2014 ``` ## **-:4:-** the second plaintiff as in the capacity of the Secretary and since he was removed from the secretaryship, no longer execution is maintainable at his instance. It is also their case that after the granting of the decree as in the capacity of the Secretary, it cannot be flouted as a decree granted in his favour in the capacity of a seniormost member of the family. The decree in this case is as against injunction. The second plaintiff was granted an order of injunction and as per the decree, the defendants were restrained by a decree of permanent prohibitory injunction from interfering with the right of the second plaintiff to manage the affairs of the plaint schedule property and also the affairs of the first plaintiff temple. The question is whether the right of the second plaintiff referred to by the court below in the judgment and decree was in the capacity of the Secretary or in the capacity of the seniormost member of the family. This is a matter for consideration of the judgment and decree and it is not that, there does not arise any question of rectification of the decree in the sense that the relief has been granted based on the discussion in the judgment. The rectification of decree would arise if there is any ambiguity or mistake as to the operative portion of the decree. The decree in this regard is very clear in the light of the discussion the judgment. Therefore, in such circumstances this court is of the view that ``` OPC 1486/2014 ``` ## **-:5:-** there is no scope for amendment of the decree under Section 152 CPC as the decree itself is clear as to the right of the second plaintiff as discussed in the judgment. The court below while dismissing the execution application referred to the observations made by this court in C.R.P.No.891/2008 and that in W.P.(C).No.3874/2010 that if at all the second plaintiff has got a case that beyond the capacity as Secretary, he should be allowed to execute the decree in the capacity of the eldest member of the family, if it is so provided in the decree. Therefore, it is a matter of understanding the decree and judgment and not a matter of mistake to be rectified by amendment. 3. This court is of the view that the executing court is free to consider executability of the decree in the light of the earlier observations of this court in the revision petition as well as in the writ petition and in the light of the discussions in the judgment in the suit. The original petition is disposed of as above. No costs. Sd/- ## **A.MUHAMED MUSTAQUE, JUDGE** ms