Held the appeal is maintainable. Direct single judge to decide executability of decree afresh after elections without being influenced by previous observations. Maintained view that execution petition is maintainable.
Set aside previous observations on executability and direct Single Judge to decide issue afresh.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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
EX.FA.NO.34/2010
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
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
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.
Ex.F.A.No.34/2010
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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.
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
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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.
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)
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.
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.
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
3 issues framed by the court
Whether the appeal filed under Section 5(1) of the Kerala High Court Act is maintainable.
Whether the learned Single Judge exercised original jurisdiction or merely execution jurisdiction.
Whether the issue of executability of the decree must be decided afresh by the Single Judge after elections.
Colour shows how this judgement treated each authority
Padmanabhan v. Shriram Chits & Investments (P) Ltd.Referred¶50
Padmanabhan v. Shriram Chits & Investments ( P) Ltd. ( 1995(2) KLT 61.
Manoj v. Infant Jesus ChurchReferred¶50
Manoj v. Infant Jesus Church ( 1999 (3) KLT 521)
Damodaran v. Federal Bank Ltd.Referred¶50
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 othersReferred¶50
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 ChackoReferred¶50
Philip Koshy M. v. Prof. Saji Chacko ( 2010 (2) KHC 969(DB)
2 provisions across 2 enactments
Chacko Kunjappan
N.V. Kuriajose
Fr. Joseph John
Fr. Abraham
Abby
P.M.Eldho
A.K. Basheer
P.Q. Barkath Ali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
A.K. Basheer and P.Q. Barkath Ali
Parties & counsel
