Partly allowed

Kalpathur Thulichaputhiyeath Rohini Amma v. Kannambathpara Kshethra Committee Rep.by Its President & Hereditary Trustee Kolliyil Balakrishnan

Kerala HC11 Feb 2013CRP/19/2013

Case brief

AI extract

What is this about?

The Kerala High Court partially allowed a civil revision petition challenging the enforcement of a compromise decree. The court held the fixation of boundaries is enforceable against all parties, but set aside the direction for delivery of possession to the respondent, allowing only administrative custody.

What did the court decide?

The order directing delivery of possession of the temple property to the respondent was set aside, while the direction to hand over custody and administration was upheld.

Kalpathur Thulichaputhiyeath Rohini Amma Vs Kannambathpara… — Property and Title | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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MONDAY, THE 11TH DAY OF FEBRUARY 2013/22ND MAGHA 1934

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CRP.No. 19 of 2013 ()

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--------------------------- -----

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E.P.180/2006 IN OS. 50/1986 OF THE MUNSIFF COURT, PERAMBRA.

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,..............

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REVISION PETITIONER(S)/RESPONDENTS IN EP IN O.S.:-:

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1. KALPATHUR THULICHAPUTHIYEDATH ROHINI AMMA, D/O.ANANDAN NAIR, HOUSE WIFE, CHENOLI AMSOM DESOM KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE.

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2. K.T.GOPALAKRISHNAN, AGED 58 YEARS S/O.JANAKI AMMA, MANIKKOOTH HOUSE, CHENOLI AMSOM DESOM

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KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE.

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3. SAJINI RAJENDRAN, AGED 38 YEARS

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W/O.RAJENDRAN, HOUSE WIFE

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PUTHIYOTTIL HOUSE, CHENOLI AMSOM DESOM

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KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE.

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4. SON - VISHNURAJ, AGED 14 YEARS

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S/O.RAJENDRAN, MINOR, PUTHIYOTTIL HOUSE

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CHENOLI AMSOM DESOM, KOYILANDY TALUK

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KOZHIKODE DISTRICT, KERALA STATE.

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5. BROTHER - HARI RAJ, AGED 11 YEARS

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S/O.RAJENDRAN, MINOR, PUTHIYOTTIL HOUSE CHENOLI AMSOM DESOM, KOYILANDY TALUK

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KOZHIKODE DISTRICT, KERALA STATE.

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BY ADVS.SRI.B.KRISHNAN

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SRI.RAJESH V.NAIR

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SMT.SEEMA

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tss

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CRP. NO.19/2013

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RESPONDENT(S)/PETITIONER IN E.P. IN O.S.:-:

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KANNAMBATHPARA KSHETHRA COMMITTEE , REP.BY ITS PRESIDENT & HEREDITARY TRUSTEE KOLLIYIL BALAKRISHNAN S/O.NARAYANAN, AGED 45 YEARS,COLLECTION AGENT, CHENOLI AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE.

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BY ADV. SRI.K.MOHANAKANNAN BY ADV. SMT.A.R.PRAVITHA

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

tss

CRP. NO.19/2013

APPENDIX

PETITIONER'S ANNEXURES:-

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A:- COPY OF THE DECREE IN OS. 50/1980 ON THE MUNSIFF, PERAMBRA DTD. 22.12.1993.

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B:- COPY OF THE JUDGMENT IN OS. 50/12986 ON THE FILE OF MUNSIFF, PERAMBRA DTD. 22.12.1993

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C:- COPY OF THE DECREE IN APPEAL SUIT 10/94 IN OS. 50/1986 ON THE FILE OF SUBORDINATE JUDGE, KOYILANDY DTD. 8TH AUGUST 1994.

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D:- COPY OF THE JUDGMENT IN APPEAL 10/94 IN OS.50/86 ON THE FILE OF SUBORDINATE JUDGE, KOYILANDY DTD. 8TH AUGUST 1994.

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E:- COPY OF THE JUDGMENT IN SA. 738/1994 ON THE FILE OF HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM DTD. 24TH OCT. 1994.

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RESPONDENT'S ANNEXURES

NIL

//TRUE COPY//

P.A. TO JUDGE

tss

THOMAS P. JOSEPH, J. ===================== Civil Revision Petition No. 19 of 2013

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============================== Dated this the 11^th day of February, 2013

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O R D E R

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Judgment debtors in E.P. No. 180 of 2006 in O.S. No.50 of 1986 of the Munsiff's Court, Perambra are aggrieved by the order dated 10.12.2012 appointing the Amin to fix boundary of the temple property, way to the temple and for delivery of possession of property to the respondent/decree holder.

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First petitioner and deceased first plaintiff (whose legal

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representatives are petitioners 2 onwards) filed the suit for prohibitory injunction. Trial Court dismissed the suit. In A.S. No. 10 of 1994 arising therefrom, learned Sub Judge, Koyilandi granted a decree in favour of first petitioner and deceased first plaintiff. Respondent was restrained from trespassing into the suit property or interfering with its possession and enjoyment by the first petitioner and deceased first plaintiff. Respondent filed S.A No. 738 of 1994 in this court. Parties entered into a settlement as per which a compromise decree was passed. Pursuant to the compromise decree, respondent filed E.P. No. 180 of 2006 against first petitioner/second plaintiff for

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C.R.P. No.19 of 2013 -: 2 :-

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enforcement of the compromise decree under Order XXI, Rule 35 of the Code of Civil Procedure. That application was dismissed, one of the reasons being that legal representatives of the deceased first plaintiff were not impleaded. Respondent challenged that order in CRP No. 933 of 2007. That civil revision was allowed and the execution petition was remitted to the executing court with certain directions.

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Respondent filed application for impleadment of petitioners 2 onwards on 29.11.2007. That application was allowed on 28.12.2007. It is submitted that though impleadment was allowed, it was not carried out in the execution petition. Hence respondent filed E.A No. 147 of 2012 on 08.11.2012 for amendment of the execution petition to incorporate name of petitioners 2 onwards. That application was allowed on 28.11.2012. Following that, rejecting various objection raised by petitioners, executing court passed the impugned order dated 10.12.2012.

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Learned counsel for petitioners has raised various contentions resisting the execution petition and challenging its maintainability. It is contended that there is a direction to hand over administration of the temple to the respondent, the period

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C.R.P. No.19 of 2013 -: 3 :-

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of limitation for execution of that direction is only 3 years from 24.10.1995 (date of compromise decree) and the execution petition having been filed in the year, 2006, the said relief cannot be enforced. A further contention is that so far as petitioners 2 onwards are concerned, they can be deemed to have been impleaded in the execution petition only on 29.11.2007 on which day the application for impleadment was allowed and that being after 12 years from 24.10.1995. Execution petition against petitioners 2 onwards is time barred. Learned counsel has placed reliance on Hardiyal Singh V. Gurnam Singh (1992(2) KLT S.N. 19, Case No.25).

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A further contention petitioners have advanced is that the compromise decree does not provide for handing over possession of the suit property or the temple to the respondent and hence executing court was not right in directing delivery of possession of the property. It is also contended that the compromise decree does not contemplate fixation of boundary.

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Learned counsel for the respondent has contended that the compromise decree is composite and hence the contention that so far as one relief alone is concerned, period of limitation of 3 years cannot be accepted. It is contended that as the decree

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provides for administration and management of the temple and its property by the respondent, handing over possession of the property is required. A further contention is that in the way the compromise decree is passed, it contemplates fixation of boundary. Referring to the contention that execution petition to the extent it concerns petitioners 2 onwards is barred by limitation, learned counsel has relied the decision in Dokku Bhushyya V. Katragadda Ramakrishnayya and others (AIR 1962 Supreme Court 1886).

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Before going into a decision the controversy, I have to refer to the compromise petition based on which a compromise decree was passed on 24.10.1995. There, it is stated that first petitioner and deceased first plaintiff agreed to hand over administration of the temple to a committee consisting of devotees of temple on condition that patrons of the committee shall be two persons nominated by the plaintiffs. Boundaries of the temple are specified in the compromise petition. It is further stated that entry to the temple shall be from southern side of the temple through the Kannambath School - Thattaraththazhe road.

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So far as the contention that execution of the decree to the extent it related to handing over administration of the

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temple is time barred is concerned, the compromise decree is a composite one covering various aspects including fixation of boundary of the property and handing over administration of the temple. Hence that part of the decree dealing with handing over possession of administration alone cannot be dissected from the rest of the decree. Hence that contention has to be rejected.

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Next contention is based on impleadment of petitioners 2 onwards as per application filed in the execution proceeding on 29.11.2007 which was 12 years after the compromise decree dated 24.10.1995. Learned counsel has attempted to draw sustenance for his argument from Sec.21 of the limitation Act, 1963 (for short “the Act”) corresponding to Sec.22 of the Limitation Act, 1908. The said provision says that where, after institution of a suit, a plaintiff/defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. The proviso thereto says that if the court is satisfied that the omission to include a new plaintiff or defendant was due to any mistake made in good faith, it may direct that the suit as regards such plaintiff or defendant be deemed to have been instituted on any early date. Going by Sec. 21 of the Act, it is clear that the said provision applies to a

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“suit” when a new plaintiff or defendant is added. In this case, it is not a “new” plaintiff or defendant added in the “suit”. Instead, it is impleadment of legal representatives of the deceased first plaintiff in the execution petition. Hence Sec.21 of the Act has no application. Referring to old Sec.22 of the Act of 1908, it is held by the Patna High Court in Mst . Lachmibati Kumari V. Nand Kumar Kumar Singh and others (AIR 1921 Patna 180) that the said provision does not apply to proceeding in execution. I do not find reason to differ.

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A further fact I must notice is that suit properties as claimed by the first petitioner and the deceased first plaintiff belonged to their tarwad, i.e., they were joint tenants of the said property. Hence even without junction of first plaintiff it was possible for the first petitioner/second plaintiff to represent the entire estate since among joint tenants, there is unity of title, interest and possession. Moreover, in the order passed by this court in CRP No. 930 of 2007 on 02.11.2007 setting aside dismissal of E.P.No.180 of 2006 this court observed :

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“the order under challenge is set aside and the matter is sent back to the court below thereby permitting the revision petitioner to implead the

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legal heirs of Janaki Amma and hear and dispose of the matter in accordance with law.”

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The order in CRP No. 933 of 2007 permitted respondent to implead petitioners 2 onwards. At any rate, non-impleadment of petitioners 2 onwards was not wilful. The proviso to Sec.21 of the Act (if at all that provision applies) enables the court to direct that if the mistake in non-impleadment was made in good faith, such impleadment shall relate to a day earlier to the application for impleadment. That proviso should come to the rescue of respondent. Hence the objection raised on the ground of limitation has to fail.

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So far as fixation of boundary is concerned, I do not find reason to interfere since the compromise petition and the compromise decree state boundaries of the temple property. Even in the absence of specific provision in the decree for fixation of boundary, boundaries of the temple property covered by compromise petition and decree are to be identified and fixed. The court executing the decree can do that without relegating the parties to another suit.

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But so far as direction for delivery of possession of the property to the respondent is concerned, I am inclined to think

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that the objection raised by petitioners should be sustained. Reason is that in the compromise petition as well as compromise decree, the direction is only to hand over administration of the temple to a committee consisting of devotees of temple. There is no direction that properties of the temple should be handed over to respondent. In the absence of any such direction in the compromise decree, executing court could not go behind the decree and direct that properties of the temple be handed over to the respondent.

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The above cannot relate to handing over the temple. For, the compromise petition and decree directs handing over administration of the temple. Hence the temple should be in the custody and management of respondent. The order of the executing court therefore, requires modification.

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Resultantly, this civil revision is allowed in part as under:-

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1. Order dated 10.12.2012 in E.P. No. 180 of 2006 in O.S.50 of 1986 of Munsiff's Court, Perambra is modified to the extent that direction to deliver possession of the temple property to the respondent is set aside.

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1. It is made clear that the above modification will not

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apply to handing over custody, management and administration of the temple to the respondent.

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1. It is also made clear that even if property of the

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temple continues to be in the possession of petitioners, it will be well within the power of the respondent to use the said property for effective administration and management of the temple.

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1. It is also made clear that handing over administration of the temple to the respondent will be subject to other conditions imposed by the compromise decree.

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1. In all other respects, the order dated 10-12-2012 in E.P.No.180 of 2006 would stand.

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Sd/-

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THOMAS P.JOSEPH, JUDGE

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smv

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//True copy//

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P.A. To Judge

Kalpathur Thulichaputhiyeath Rohini Amma v. Kannambathpara Kshethra Committee Rep.by Its President & Hereditary Trustee Kolliyil Balakrishnan

Case brief

What is this about?

What did the court decide?

Kalpathur Thulichaputhiyeath Rohini Amma v. Kannambathpara Kshethra Committee Rep.by Its President & Hereditary Trustee Kolliyil Balakrishnan

Case brief

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What did the court decide?

What the court decided

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