Kerala High Court
Kollampuzha Bhagavathy Temple vs Biju Kumar on 4 April, 2025
FAO NO.1/2025 1
2025:KER:30071
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947
FAO NO.1 OF 2025
ARISING OUT OF THE ORDER DATED 25.11.2024 IN
I.A.NO.7/2024 IN AS NO.56/2023 OF SUB COURT, ATTINGAL
APPELLANTS/PETITIONERS/RESPONDENTS:
1 KOLLAMPUZHA BHAGAVATHY TEMPLE,
ATTINGAL VILLAGE, THIRUVANANTHAPURAM DISTRICT
REPRESENTED BY M. SASI, AGED 70 YEARS S/O MATHU,
AMMU NIVAS, NEAR KOLLAMPUZHA PARAVAN VILAKATHU
BHAGAVATHY TEMPLE, ATTINGAL, THIRUVANANTHAPURAM
DISTRICT, PIN - 695101
2 M.SASI
AGED 70 YEARS
S/O MATHU, AMMU NIVAS, NEAR KOLLAMPUZHA PARAVAN
VILAKATHU BHAGAVATHY TEMPLE, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT, PIN - 695101
BY ADVS.
MANU RAMACHANDRAN
R.RAJESH (VARKALA)
M.KIRANLAL
T.S.SARATH
SAMEER M NAIR
SAILAKSHMI MENON
SMT.AKHILA B.
RESPONDENTS:
1 BIJU KUMAR
AGED 49 YEARS
S/O CHELLAPPAN, LAKSHMI VILASAM,
MANOMOHANA VILASAM ROAD,
NEAR OLD AGE HOME, VALIAYAKUNNU, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT, PIN - 695101
FAO NO.1/2025 2
2025:KER:30071
2 SASIKUMAR,
AGED 48 YEARS
S/O CHELLAPPAN, SREESYLAM, KODUMON,
MEENPADU KSHETRAM ROAD, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT, PIN - 695101
BY ADV G.S.REGHUNATH, R1
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY
HEARD ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
FAO NO.1/2025 3
2025:KER:30071
JUDGMENT
Dated this the 04th day of April, 2025 This appeal is filed challenging the order dated 25.11.2024 in I.A.No.7 of 2024 in A.S.No.56 of 2023 of Sub Court, Attingal. Appellants were the petitioners in the I.A. Respondents were the respondents therein.
2. O.S.No.221 of 2019 was filed before the Munsiff Court, Attingal by the appellants (hereinafter referred to as 'the plaintiffs') inter alia seeking to declare that the eldest male member (Karanavar) of Paravanvilakom family is the person having right to manage the plaint schedule property viz., Kollampuzha Paravanvilakathu Bhagavathy Temple and its properties. Ancillary prayers including a prayer for permanent prohibitory injunction restraining the respondents herein (hereinafter referred to as 'the defendants') from interfering or causing obstruction to the Karanavar from managing/administering the plaint schedule property was also sought. The suit was decreed by the Munsiff Court vide judgment and decree dated 13.11.2023. Challenging the same, FAO NO.1/2025 4 2025:KER:30071 the defendants filed an appeal numbered as A.S.No.56 of 2023 before the Sub Court, Attingal and obtained a stay. The plaintiffs filed O.P.(C) No.1674 of 2024 before this Court, which was disposed of vide judgment dated 13.09.2024 directing expeditious consideration and disposal of I.A.No.7 of 2024 in A.S.No.56 of 2023 filed by the plaintiffs which sought for the appointment of a receiver for temporary administration of the plaint schedule property. The Sub Court heard the I.A. and rendered an order allowing the I.A., but by appointing defendant No.1 as the receiver. The said order is impugned in this F.A.O.
3. Heard Sri.Manu Ramachandran, Advocate, for the appellants/plaintiffs and Sri.G.S.Reghunath, Advocate for the 1 st respondent/1st defendant.
4. Learned counsel for the appellants/plaintiffs contended that the order impugned is perverse erroneous and unsustainable in law. The status of the temple as a private temple had been affirmed and declared by this Court. A copy of the judgment dated 13.02.2019 in A.S.No.35 of 2002 which was filed challenging the judgment and decree in O.S.No.76 of 1993 is brought to my notice in this respect. The attempt, it is alleged, is to topple the said settled FAO NO.1/2025 5 2025:KER:30071 position. The defendants have created a society with the oblique motive of changing the character of the temple. The court erred in overlooking the fact that after obtaining stay of execution of the decree of the trial court, the defendants had demolished the temple building and had registered society with their henchmen for administering the temple. The said illegal activities were being perpetuated by the defendants on the strength of the interim stay order and having possession thereof. The appellate court ought to have found that it was highly necessary in the interests of justice to take steps to protect the temple and its properties. The attempt made by the defendants was to change the nature of the temple by inducting strangers into its administration. The reasoning in the impugned order concerning the additional financial burden that would be caused in appointing a third person as receiver is misplaced. It was open to the court to appoint an official receiver or the 2nd plaintiff as the receiver. The court ought to have directed the defendants to produce the books of account of the temple and perused it before arriving at a conclusion regarding the financial implications. The course of action adopted by the court is contrary to law. Though the Court was convinced about the need to appoint a FAO NO.1/2025 6 2025:KER:30071 receiver, erred in appointing the 1st defendant who is the perpetrator of illegalities as the receiver. Irreparable damage and mischief will be created by the defendants by inducting strangers, collecting public money and causing destruction of the temple in the name of renovation. Earlier, JCB had been used and the temple demolished while the appeal was pending under the garb of renovation. This was a valid and substantial reason to seek appointment of a receiver. The objective of appointing a receiver is to preserve the subject matter pending litigation. Reliance is placed on the dictum laid down in Mary and others v. Biju P.Sebastain [2010 (3) KHC 189]. The temple has already been demolished. Receipt of some amounts due to the temple under acquisition proceedings is on the anvil. The objective of the defendants is to appropriate the same. The impugned order of the court will now permit the defendants to clandestinely continue to perpetuate their illegal actions. The order under challenge is hence fit to be set aside.
5. Per contra, the learned counsel for the defendants contended that the 2nd plaintiff is not even a member of the family. He is the member of another family viz., the Pandaravilakom family. Nothing has been produced to prove that the 2 nd plaintiff is a FAO NO.1/2025 7 2025:KER:30071 member of the Paravanvilakom Family. Hence he had no right to file the I.A. The defendants had been in possession of the relevant properties since 2003. They had been conducting the affairs of the temple from 2003 to 2024. A similar IA seeking to appoint a receiver had been filed in the O.S. too, which had been dismissed. Thus the 2nd plaintiff had been attempting to dispossess the defendants from the plaint schedule properties one way or another. It is the operation of the judgment of the trial court that had been stayed by the appellate court and not the execution thereof. Hence in effect there is no judgment for the plaintiffs to bank upon. Order XL Rule 1 of the Code of Civil Procedure (CPC) cannot be invoked, so as to dispossess a person who is already in possession of the relevant property from 2003 onwards. Attempt made by the plaintiffs was to remove the defendants through a short cut method and this had been thwarted by the impugned order which is just, legal and convenient. The impugned order suffers from no illegality. F.A.O. is only to be dismissed.
6. I have heard both sides in detail and perused the documents produced.
7. It is trite that the appointment of a receiver rests on the FAO NO.1/2025 8 2025:KER:30071 sound discretion of the Court. The lex classicus on the point is T.Krishnaswamy Chetty v. C.Thangavelu Chetty and others [AIR1955 Mad 430], wherein the five principles described as the "paanch sadachar' to be followed by Courts exercising equity jurisdiction in appointing receivers were pithily stated as follows :
"(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. The discretion is not arbitrary or absolute: it is a sound and judicial discretion, taking into account all the circumstances of the case, exercised-for the purpose of permitting the ends of justice, and protecting the rights of all parties interested in the controversy and the subject-matter and based upon the fact that there is no other adequate remedy or means of accomplishing the desired objects of the judicial proceeding .
(2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit. (3) Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right, he must be reasonably clear and free from doubt. The element of danger is an important consideration. A Court will not act on possible danger only; the danger must be great and imminent demanding immediate relief. It has been truly said that a Court will never appoint a receiver merely on the ground that it will do no harm.
(4) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. If the dispute is as to title only, the Court very reluctantly disturbs possession by receiver, but if the property is exposed to danger and loss and the person in possession has obtained it through, fraud or force the Court will interpose by receiver for the security of the property. It would be different where the property is shown to be 'in medio', that is to say, in the enjoyment of no one, as the Court can hardly do wrong in taking possession: it will then be the common interest of all the parties that the Court should prevent a scramble as no one seems to be in actual lawful enjoyment of the property and no harm FAO NO.1/2025 9 2025:KER:30071 can be done to anyone by taking it and preserving it for the benefit of the legitimate who may prove successful.
Therefore, even if there is no allegation of waste and mismanagement the fact that the property is more or less 'in medio' is sufficient to vest a Court with jurisdiction to appoint a receiver.
(5) The Court, on the application of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame. He must come to Court with clean hands and should not have disentitled himself to the equitable relief by laches, delay, acquiescence etc."
8. The need for exercising caution in the process was also emphasized in T. Krishnaswamy Chetty (supra) holding as follows:
"In exercising its discretion the Court proceeds with caution, and is governed by a view of all the circumstances. No positive or unvarying rule can be laid down as to whether the Court will or will not interfere by this kind of interim protection of the property. Where, indeed, the property is as it were 'in medio', in the enjoyment of no one, it is the common interest of all parties that the Court should prevent a scramble, and a receiver will readily be appointed: as, for instance, over the property of a deceased person pending a litigation as to the right to probate or administration. But where the object of the plaintiff is to assert a right to property of which the defendant is in enjoyment, the case presents more difficulty; The Court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant; in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation."
9. Having thus reminded myself of the essential principles governing the subject, I proceed to consider the impugned order rendered by the learned Sub Judge.
FAO NO.1/2025 10
2025:KER:30071
10. A perusal of the impugned judgment reveals that the relevant aspects had engaged the attention of the learned Sub Judge. As regards the contention that a similar application had been filed before the trial court and that it had been dismissed, the learned Judge had relied on the dictum laid down in Mary (supra) and concluded that no res judicata is applicable for subsequent receiver application. The Sub Court had also concluded that based on the confirmation by this Court in A.S.No.35 of 2002, the status of the temple as a private one cannot be questioned. The Sub Judge has also opined that any support given by the defendants to the formation of a society is a clear step to deviate from the decree which had been confirmed by this Court. It had been concluded that the apprehension of the plaintiffs in the said respect is logical and reasonable. Regarding demolition of the temple, it had been opined that even the evidence adduced from the side of the plaintiffs admit the fact that the temple was in a dilapidated condition and since a criminal case was already pending in the said respect, the learned Sub Judge had concluded that the same had to be permitted to take its own course. As regards the alleged activities carried on by the defendants, the learned Sub Judge has noted that the defendants FAO NO.1/2025 11 2025:KER:30071 are at the helm of the affairs only because the decree had been stayed on the ground that the key of the temple remained with them and that such stay of the decree is not a licence to the defendants to administer the temple according to their whims and fancies. The rights of the defendants have been termed to be limited to running the day-to-day affairs of the temple till the appeal is disposed of. It is in this backdrop that the Sub Judge had proceeded to consider the application for appointing a receiver and the said course adopted is valid and proper.
11. Coming to the question, who was to be appointed as the receiver, the learned Sub Judge reasoned that since there is no whisper regarding the income from the property of the temple and since the defendants have stated that income from the temple was being utilised for its day-to-day affairs, appointing a third person receiver will impose burden upon the temple property. On the said premise, the learned Sub Judge concluded that the felt need was to confine the defendants to the extent of managing the day today affairs of the temple and its property. Since it had already been concluded that the defendants are in possession, the learned Sub Judge permitted the defendants to manage the affairs of the temple FAO NO.1/2025 12 2025:KER:30071 and deemed it just and proper to allow them to continue the same subject to restrictions and conditions intended to ensure accountability. This course adopted by the learned Sub Judge, I note meets the mandates of Order XL Rule 1. Rather than appointing a third person, which could have proved to be onerous on the property and income, it was concluded to appoint the 1 st defendant as the receiver. This was done only after ensuring that restrictions are put in place towards imposing responsibility and accountability upon him. To this effect it is noted that in the impugned order, the learned Sub Judge had directed that 1st defendant shall execute a bond for Rs.50,000/- and that he shall file report on the administration of the temple once in a month. He had also been directed to submit the income and expenditure statement of the plaint schedule property and the temple once in every 3 months and as and when directed by the Sub Court. The Sheristadar of the Sub Court, Attingal, is seen directed to verify the statement of accounts thus filed and to submit a report to the Sub Court. The Sub Court has also directed the 1 st defendant as receiver to obtain permission from the court for any activities concerning the temple and the plaint schedule properties including regarding constructions demolition or alterations etc. in the FAO NO.1/2025 13 2025:KER:30071 plaint schedule property. Further he is seen restricted from inducting any strangers in the management of the property and has been directed to take necessary steps with the leave of the court to prevent unauthorised collection of money by any person or society in the name of the temple. Thus though the 1 st defendant had been appointed as receiver on the receiver application filed by the plaintiffs, the Sub Court had taken care and caution to render concise and elaborate directions to ensure that the receiver remains accountable and functions within the limits to suit the objectives of his appointment. I note that the mandates of Order XL Rule 1 CPC as well as the dictum laid down in T. Krishnaswamy Chetty (supra) has been met. The impugned order reveals a sound and judicial exercise of discretion after taking into account all the circumstances of the case. The avowed purpose in Order XL Rule 1 CPC of protecting the rights of all parties interested in the controversy have been adequately met.
12. In view of the above discussion, I see no reason to term the impugned order of the learned Sub Judge as perverse or illegal. The order dated 25.11.2024 in I.A.No.7 of 2024 in A.S.No.56 of 2023 of Sub Court, Attingal, does not call for any interference. FAO NO.1/2025 14
2025:KER:30071 The F.A.O. is dismissed. No costs.
At this juncture, the learned counsel for the appellants/plaintiffs prays that there may be a direction to the Sub Court, Attingal, to consider and dispose of the appeal within a specified time frame. Taking note of the fact that the A.S. is an offshoot of a dispute that had been long brewing since 1993, the Sub Court, Attingal shall endeavour to dispose of A.S.No.56 of 2023 expeditiously, at any rate within six months from the date of this judgment.
Sd/-
SYAM KUMAR V.M. JUDGE csl FAO NO.1/2025 15 2025:KER:30071 APPENDIX OF FAO 1/2025 PETITIONERS' ANNEXURES Annexure A1 A TRUE COPY OF THE JUDGMENT OF MUNSIFFS COURT, ATTINGAL IN O.S. NO. 221/2019 DATED 13/11/2023 Annexure A2 THE TRUE COPY OF THE ORDER DATED 12.04.2024 IN IA.NO.1 OF 2023 IN AS NO.56/2023 ON THE FILES OF SUB COURT, ATTINGAL Annexure A3 THE TRUE COPY OF IA NO.7/2024 IN AS NO.56/2023 ON THE FILES OF SUB COURT, ATTINGAL FILED BY THE APPELLANT FOR APPOINTING RECEIVER