Kerala High Court
M.K. George vs Fr. A.J. Abraham on 13 July, 2021
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
OP(C) NO. 446 OF 2021
AGAINST THE ORDER DATED 06.02.02021 IN E.A.NO.780/2020 IN
E.P.NO.565/2020 IN OS 163/1977 OF I ADDITIONAL DISTRICT
COURT, ERNAKULAM,
PETITIONER:
0
GEORGE VARGHESE.P, AGED 55 YEARS
PANDYAMYALIL HOUSE, KANJIRAMATTOM.P.O,
ERNAKULAM-682315.
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SHRI.SREEKUMAR S
SRI.N.RAGHURAJ
RESPONDENTS:
1 FR. A.J.ABRAHAM, AGED 46 YEARS, S/O.A.T.JACOB,VICAR,ST.IGNATIUS ORTHODOX SYRIAN CHURCH,KANJIRAMATTOM,ERNAKULAM DISTRICT-682315. 2 K.I.THANKACHAN, AGED 53 YEARS, S/O ITTAN,TRUSTEE,ST.IGNATIUS ORTHODOX SYRIAN CHURCH,KANJIRAMATTOM,ERNAKULAM DISTRICT-682315. 3 PETER N CHACKO, AGED 61 YEARS, S/O CHACKO,MANAGER ELECTED,ST.IGNATIUS VOCATIONAL HIGHER SECONDARY SCHOOL,KANJIRAMATTOM,ERNAKULAM DISTRICT-682315, NEDUMATTATHIL HOUSE,CHETHIKKODE.P.O, ERNAKULAM. 4 M.K.GEORE, VAZHAKKALAYIL HOUSE,CHETHIKKODE.P.O, EX-TRUSTEE,ST.IGNATIUS ORTHODOX SYRIAN CHURCH,KANI- RAMATTOM,ERNAKULAM -682315.
5 M.T.ISSAC, EX-TRUSTEE,ST.IGNATIUS ORTHODOX SYRIAN CHURCH,KAN- JIRAMATTOM,ERNAKULAM DISTRICT-682315.
6 SAJU P.POULOSE, S/O POULOSE,PALLAMKUNNEL HOUSE,CHETHICODE, KANJIRAMATTOM,ERNAKULAM DISTRICT-682315(EX- TRUSTEE).
7 V.G.KURIAKOSE, KANIYAMPARAMBIL HOUSE,EX-TRUSTEE,KANJIRAMATTOM, O.P.(C)No.446 of 2021 & :-2-:
C.R.P.No.81 of 2021
ERNAKULAM DISTRICT-682315.
8 THE DISTRICT EDUCATIONAL OFFICER, OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,ERNAKU- LAM-682011.
BY ADVS.
SRI.S.SREEKUMAR (SR.) SMT.SOUMIYA C.D THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH C.R.P.NO.81 OF 2021 ON 09.04.2021 AND THEREAFTER ON 04.06.2021, 08.06.2021, 21.06.2021 AND 30.06.2021 FOR FURTHER ARGUMENTS, THE COURT ON 13.07.2021 DELIVERED THE FOLLOWING:
O.P.(C)No.446 of 2021 & :-3-:
C.R.P.No.81 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943 CRP NO. 81 OF 2021 AGAINST THE COMMON ORDER DATED 06.02.02021 IN E.P.NO.565/2020 IN OS 163/1977 OF THE I ADDITIONAL DISTRICT COURT, ERNAKULAM REVISION PETITIONERS/JUDGMENT DEBTORS 1 TO 5:
1 M.K. GEORGE, AGED 90 YEARS S/O. KURIAKOSE, VAZHAKKALAYIL HOUSE, CHETHIKKODE P.O., EX-TRUSTEE, ST. IGNATIUS ORTHODOX SYRIAN CHURCH, KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN- 682315.
2 M.T.ISSAC, AGED 84 YEARS S/O.THOMMAN, EX-TRUSTEE, ST. IGNATIUS ORTHODOX SYR-
IAN CHURCH, KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN- 682315, MOOLAMKUZHIYIL HOUSE, KANJIRAMATTAM, ER- NAKULAM DISTRICT.
3 SAJU P. POULOSE, AGED 67 YEARS, S/O.POULOSE, ST. IGNATIUS ORTHODOX SYRIAN CHURCH, KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN-682315, PUL- LAMKUNNEL HOUSE, KANJIRAMATTAM P.O., ERNAKULAM DIS- TRICT, PIN-682315 (EX-TRUSTEE).
4 V.G.KURIAKOSE, AGED 54 YEARS S/O.GEORGE, KANIYAMPARAMBIL HOUSE, KANJIRAMATTAM P.O., ERNAKULAM DISTRICT, PIN-682315 ( EX-TRUSTEE). 5 GEORGE VARGHESE P., AGED 55 YEARS S/O.VARGHESE, PANDYAMYALIL HOUSE, KANJIRAMATTAM P.O., ERNAKULAM DISTRICT, PIN-682315.
BY ADVS.
K.J.KURIACHAN SRI.P.VISWANATHAN (SR.) RESPONDENTS/DECREE HOLDERS AND 6TH JUDGMENT DEBTOR:
1 FR. A.J. ABRAHAM, AGED 46 YEARS S/O. A.T.JACOB, VICAR, ST. IGNATIUS ORTHODOX SYRIAN CHURCH, KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN- 682315.
2 K.I.THANKACHAN, AGED 53 YEARS S/O. ITTAN, TRUSTEE, ST. IGNATIUS ORTHODOX SYRIAN O.P.(C)No.446 of 2021 & :-4-:C.R.P.No.81 of 2021
CHURCH, KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN- 682315, KAKKERATH HOUSE, MEVELLOOR P.O., VELLOOR VILLAGE, KOTTAYAM DISTRICT, PIN-686609.
3 PETER N. CHACKO, AGED 61 YEARS S/O.CHACKO, MANAGER ELECTED, ST. IGNATIUS VOCATION-
AL HIGHER SECONDARY SCHOOL, KANJIRAMATTAM, ERNAKU- LAM DISTRICT, PIN-682315, NEDUMATTATHIL HOUSE, CHETHIKKODE P.O., ERNAKULAM.
4 FR. JOSHI MTHEW, AGED 48 YEARS S/O.MATHAI, CHITTETH HOUSE, KULAYITTIKKARA P.O., KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN-682315. BY ADVS.
SRI.GEORGE THOMAS (MEVADA)(SR.) SMT.SOUMIYA C.D THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ALONG WITH O.P.(C)NO.446 OF 2021 ON 09.04.2021 AND THEREAFTER ON 04.06.2021, 08.06.2021, 21.06.2021 AND 30.06.2021 FOR FURTHER ARGUMENTS, THE COURT ON 13.07.2021 DELIVERED THE FOLLOWING:
O.P.(C)No.446 of 2021 & :-5-:
C.R.P.No.81 of 2021
JUDGMENT/ORDER
The issues raised in the original petition and civil revision petition are in relation to the administration and management of St.Ignatius Orthodox Syrian Church, Kanjiramattom and St.Ignatius Vocational Higher Secondary School, Kanjiramattom. Since common issues are raised, these matters were heard together and are being disposed of by this common judgment/order.
2. O.P.(C)No.446 of 2021:- The petitioner, who is the 5th respondent/5th judgment debtor in E.A.No.780 of 2020 in E.P.No.565 of 2020 in O.S.No.163 of 1977 on the file of the First Additional District Court, Ernakulam, has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P12 order dated 06.02.2021 of the said court, in that execution application. The petitioner has also sought for a declaration that his continuance as the Manager of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, till a duly constituted Managing Committee of the school is elected from among the parishioners, in accordance with the provisions of 1934 Constitution, is legal and proper. As per the impugned order, the District Educational Officer, Ernakulam, the 8 th respondent herein, was directed to approve change of management of St.Ignatius O.P.(C)No.446 of 2021 & :-6-:
C.R.P.No.81 of 2021
Vocational Higher Secondary School, based on the application made by respondents 1 to 3, who are petitioners 1 to 3/decree holders 1 to 3 in E.A.No.780 of 2020 in E.P.No.565 of 2020 in O.S.No.163 of 1977. The petitioner, who is presently functioning as the Manager of the said school, is restrained from functioning as such. If he is not doing so, the decree holders are permitted to execute the decree with the assistance of the court.
2.1. On 23.02.2021, when this original petition came up for admission, this Court issued urgent notice on admission by special messenger to respondents 1 to 7, returnable by 26.02.2021. The learned Government Pleader took notice on admission for the 8 th respondent District Educational Officer. On 26.02.2021, respondents 1 to 7 entered appearance through counsel. The learned Government Pleader, on instructions from the 8 th respondent District Educational Officer, submitted that the said respondent is yet to conduct a personal hearing in the matter of approval of managership of St.Ignatius Vocational Higher Secondary School, Kanjiramattom. Having considered the submissions made by the learned Senior Counsel for the petitioner, the learned Senior Counsel for respondents 1 to 3 and also the learned Government Pleader appearing for the 8 th respondent and taking note of the O.P.(C)No.446 of 2021 & :-7-:C.R.P.No.81 of 2021
reasoning of the execution court in Ext.P9 order dated 23.10.2020 in E.A.No.709 of 2020 and Ext.P12 order dated 06.02.2021 in E.A.No.780 of 2020 in E.P.No.565 of 2020, this Court granted an interim order to maintain status quo as on that date, with respect to the managership of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, till the next posting date. The learned Senior Counsel for respondents 1 to 3 submitted that the petitioner may be restrained from making any appointments in the school.
Therefore, in the order dated 26.02.2021, it was made clear that the order of status quo granted as above will not enable the petitioner to make any appointment in St.Ignatius Vocational Higher Secondary School, Kanjiramattom, or to take any policy decision in the management of the school. The said interim order, which was extended from time to time, is till in force.
2.2. On 10.03.2021, respondents 1 to 3 have filed a counter affidavit, opposing the reliefs sought for in this original petition. On 25.03.2021 the petitioner has filed a reply affidavit to the counter affidavit filed by respondents 1 to 3. Respondents 1 to 3 have also filed an additional counter affidavit.
3. C.R.P.No.81 of 2021:- The petitioners, who are arrayed as judgment debtors 1 to 5 in E.P.No.565 of 2020 in O.P.(C)No.446 of 2021 & :-8-:
C.R.P.No.81 of 2021
O.S.No.163 of 1977 on the file of the 1 st Additional District Court, Ernakulam, have filed this civil revision petition, under Section 115 of the Code of Civil Procedure, 1908, seeking an order to set aside the common order of the said court dated 06.02.2021 in that execution petition and to dismiss that execution petition as not maintainable in law. Respondents 1 to 3 herein, who are the decree holders in E.P.No.565 of 2020, filed the said execution petition seeking execution of the decree in O.S.No.163 of 1977, in terms of the judgment of this Court in R.F.A.No.427 of 2003. The petitioners filed objection as to the maintainability of that execution petition. The decree holders filed E.A.No.709 of 2020 in E.P.No.565 of 2020 seeking an order of injunction restraining the 5th respondent/5th judgment debtor from making any appointment in St.Ignatius Vocational Higher Secondary School, Kanjiramattom. In that execution application, the execution court passed an ad interim injunction on 01.10.2020, which was vacated subsequently, after hearing the judgment debtors. The decree holders filed E.A.Nos.710 of 2020, 780 of 2020 and 781 of 2020. By the impugned order dated 06.02.2021, the execution court allowed E.A.Nos.710 of 2020 and 780 of 2020 and dismissed E.A.No.781 of 2020. The execution court also allowed the prayers sought for in E.P.No.565 of 2020.
O.P.(C)No.446 of 2021 & :-9-:C.R.P.No.81 of 2021
Feeling aggrieved by the order of the execution court allowing the reliefs sought for in E.P.No.565 of 2020 in O.S.No.163 of 1977 and also E.A.Nos.710 of 2020 and 780 of 2020, the petitioners are before this Court in this civil revision petition.
3.1. On 23.02.2021, when this civil revision petition came up for admission, this Court issued urgent notice on admission by special messenger to the respondents, returnable by 26.02.2021.
On 26.02.2021, the matter was ordered to be listed on 02.03.2021, along with O.P.(C)No.446 of 2021. On 02.03.2021, during the course of arguments, the learned Senior Counsel for respondents 1 to 3 pointed out the necessity to call for the records in E.P.No.565 of 2020 in O.S.No.163 of 1977. Accordingly, Registry was directed to call for the records in the execution petition, by special messenger. On the interim relief sought for in I.A.No.1 of 2020, i.e., an order to stay the operation of the common order dated 06.02.2021 in E.P.No.565 of 2020 and in E.A.Nos.710 of 2020 and 780 of 2020 in O.S.No.163 of 1977, the learned Senior Counsel for respondents 1 to 3/decree holders in E.P.No.565 of 2020 had undertaken that the decree holders will not press for further steps in that execution petition, for a period of two weeks. The said undertaking given by the learned Senior Counsel, on behalf of the O.P.(C)No.446 of 2021 & :-10-:
C.R.P.No.81 of 2021
decree holders in E.P.No.565 of 2020, was recorded. The said undertaking, which was extended from time to time, is still in force.
3.2. On 08.03.2021, when this case came up for consideration along with the connected matter, during the course of arguments, on a specific query made by this Court, the learned Senior Counsel for respondents 1 to 3 submitted that the 1 st respondent in both these cases, who is the Vicar of St.Ignatius Orthodox Syrian Church, is the one appointed in terms of the 1934 Constitution, who is conducting services, and that no parallel services are being conducted in the Church. The said submission made by the learned Senior Counsel was recorded. On 29.03.2021, respondents 1 to 3/decree holders in E.P.No.565 of 2020 have filed I.A.No.2 of 2021, under Order XLI Rule 27 of the Code of Civil Procedure, 1908, seeking an order to accept additional documents as Annexures R2(a) to R2(c).
4. Heard Sri.P.Raveendran, the learned Senior Counsel for the petitioner in O.P.(C).No.446 of 2021, Sri.P.Viswanathan, the learned Senior Counsel for the petitioners in C.R.P.No.81 of 2021, Sri.S.Sreekumar, the learned Senior Counsel for respondents 1 to 3 in O.P.(C)No.446 of 2021, Sri.George Thomas Mevada, the learned Senior Counsel for respondents 1 to 3 in C.R.P.No.81 of 2021 and O.P.(C)No.446 of 2021 & :-11-:C.R.P.No.81 of 2021
also the learned Government Pleader appearing for the 8th respondent District Educational Officer in O.P.(C).No.446 of 2021.
By the order dated 04.06.2021, both sides were asked to clarify on the undertaking referred to in Para.20 of the impugned order dated 06.02.2021. On 17.06.2021, the learned counsel for respondents 1 to 3 in C.R.P.No.81 of 2021 submitted a notes of arguments dated 16.06.2021, along with I.A.No.3 of 2021 to accept the same on file.
Thereafter, further arguments were heard on 21.06.2021 and 30.06.2021.
5. O.S.No.163 of 1977 on the file of the First Additional District Court, Ernakulam was one originally instituted before the Munsiff's Court, Ernakulam (as O.S.No.327 of 1976) seeking the following reliefs;
"(a) Declaring that the 1st defendant Church, i.e., St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattam shall be administered in all matters of religious worship and administration of assets under Moran Mar Baselius Mar Thoma Mathews-I, Catholicose-cum-Malankara Metropolitan or whomsoever may succeed him in his office in the Malankara Orthodox Syrian Church and under the 3rd plaintiff or whosoever may succeed him in his office and as per the Constitution of Malankara Orthodox Syrian Church; that all religious worship in the said Church shall be carried on only by the Vicar and priests appointed by the said Malankara Metropolitan or 3rd plaintiff or others succeeding them in O.P.(C)No.446 of 2021 & :-12-:C.R.P.No.81 of 2021
offices and that all administration of the 1 st defendant Church, its institutions, chapels and assets shall be carried on under the constitution of Malankara Orthodox Syrian Church, originally passed on 26.12.1934 and as amended subsequently;
(b) Restraining by injunction defendants 2 to 17 from receiving or causing to receive defendants 18 to 22 in the plaint schedule Church and properties or from expending any income of the 1st defendant Church for the benefit of or at the command or instance of defendants 19 to 22 and restraining defendants 18 to 22 from entering or interfering with the religious worship in or administration of the 1 st defendant Church, its cemetery, chapel, institutions and assets and restraining defendants 3 and 5 to 17 from carrying on any administration of the assets of the 1 st defendant Church, its chapel and institutions except under the 3 rd plaintiff or whomsoever may succeed him in office and under the Constitution;
(c) Directing the contesting defendants to pay the plaintiffs the costs of this suit;
(d) Granting such other reliefs to preserve the 1 st defendant Church as a parish Church of the Malankara Orthodox Syrian Church."
5.1. O.S.No.327 of 1976 was subsequently transferred to the Special Court for trial and disposal of cases pertaining to Malankara Church disputes, namely, the First Additional District Court, Ernakulam, and was renumbered as O.S.No.163 of 1977. By the judgment dated 13.10.2003, the trial court dismissed the suit for O.P.(C)No.446 of 2021 & :-13-:
C.R.P.No.81 of 2021
want of sanction under Section 92 of the Code of Civil Procedure, 1908. The judgment and decree of the trial court was under
challenge before this Court in R.F.A.No.427 of 2013, by the plaintiffs. By the judgment dated 11.02.2020, this Court allowed that appeal, setting aside the impugned judgment and decree and consequently decreed O.S.No.163 of 977 declaring that the 1 st defendant Church, namely, St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattom, shall be administered in all matters of religious worship and administration of assets as per the 1934 Constitution.
5.2. A reading of the judgment of this Court dated 11.02.2020 in R.F.A.No.427 of 2003 would show that, though the defendants urged a contention that St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattom is not a constituent of the Malankara Church, but an independent Church established by the members of the Parish, without affirming allegiance to the 1934 Constitution, it was conceded before this Court by the learned Senior Counsel, as instructed by the learned counsel for the defendants, that this contention is not being pressed and therefore, the defendants admit that the 1934 Constitution is applicable. Taking note of the above stand taken by the defendants and also the law laid down by the O.P.(C)No.446 of 2021 & :-14-:C.R.P.No.81 of 2021
Apex Court in P.M.A. Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001] and K.S. Varghese v. St.Peter's and St.Paul's Syrian Orthodox Church [(2017) 15 SCC 333], this Court held that, merely because O.S.No.163 of 1977 has been dismissed by the trial court finding it to be bad for want of leave, the defendants cannot claim control or management of the Church, contrary to the declarations in the aforesaid judgments; and therefore, the suit deserves to be decreed to that extent. Consequently, this Court decreed the suit, declaring that the 1 st defendant Church, namely St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattom, shall be administered in all matters of religious worship and administration of assets as per the 1934 Constitution. Paragraphs 3 to 7 and also the operative portion of the judgment dated 11.02.2020 read thus;
"3. The plaintiffs assert that the Church in question is to be governed only by the 1934 Constitution of the Malankara Church and have sought, inter alia, a declaration that it should be administered in all matters of religious worship under the Catholicos cum Malankara Metropolitan and under the diocesan metropolitan of the Malankara Church. Consequential injunctions were also sought against the defendants from interfering with the religious worship and in the administration of the Church, along with its other institutions, on the assertion that these can be done only under the above mentioned 1934 O.P.(C)No.446 of 2021 & :-15-:C.R.P.No.81 of 2021
Constitution.
4. When one goes through the pleadings on record, it becomes indubitable that the primary point of disputes between the parties are with RFA No.427/03 respect to the management and control of the Church and the crucial question is whether it is constituent of the Malankara Church and therefore, liable to be governed under the 1934 Constitution. I say this because, while the plaintiffs assert that the Church is to be governed only under the 1934 Constitution, the defendants-who concede that it is a part of the Malankara Church-contend that it can be governed only under the 'Udampady', dated 18.05.1103(ME) executed between the members of the Parish.
5. Be that so, it is now affirmatively settled by the Hon'ble Supreme Court, through the judgments in P.M.A. Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001] and K.S. Varghese and others v. St.Peter's and St.Paul's Syrian Orthodox Church and others [2017 (3) KLT 261 SC], that all Churches under the Malankara Church is to be governed only under the 1934 Constitution. The Hon'ble Supreme Court has also specifically mandated that all Courts in India issue no orders contrary to this and it is thus incredible that all the parties herein are implicitly bound by the same.
6. Of course, the defendants appear to urge a contention that the Church in question is not a constituent of the Malankara Church but that it is an independent Church established by the members of the Parish without affirming allegiance to the 1934 Constitution. However, it is conceded before me today by Sri.P.Vishwanathan, learned Senior Counsel, instructed by Sri.K.J.Kuriachan, their learned counsel, that this contention is not being pressed and therefore, that they admit that the said constitution is applicable.
O.P.(C)No.446 of 2021 & :-16-:C.R.P.No.81 of 2021
7. In the afore scenario, since the issues relating to the management and control of Churches under the Malankara Church are now conclusively concluded by the Hon'ble Supreme Court in P.M.A. Metropolitan and K.S.Varghese (supra), I am of the firm view that merely because the suit has been dismissed by the trial court finding it to be bad for want of leave, the defendants cannot claim control or management of the Church, contrary to the declarations in the afore judgments; and therefore, that the suit deserves to be decreed to that extent.
In the conspectus of the above, I allow the appeal, setting aside the impugned judgment and decree and consequently decree the suit declaring that the 1st defendant Church, namely St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattom, shall be administered in all matters of religious worship and administration of assets as per the 1934 Constitution."
(underline supplied) 5.3. After the judgment was dictated on 07.02.2020, the matter was listed as 'to be spoken to' on 11.02.2020, at the request of the learned counsel for the 4 th respondent, to point out the pendency of O.S.No.17 of 2016 on the file of the First Additional District Court, Ernakulam. The order of this Court, after hearing the learned Senior Counsel for the 4th respondent, reads thus;
"To be spoken to This matter has been listed today for 'being spoken to' since, after I dictated judgment on 07.02.2020, Sri.K.J.Kuriachan, learned counsel appearing for respondent No.4 submitted that Sri.P.Viswanathan, learned Senior Counsel, had a further O.P.(C)No.446 of 2021 & :-17-:C.R.P.No.81 of 2021
submission to make, with respect to the merits of the matter.
2. In such circumstances, I have heard Sri.P.Viswanathan, instructed by Sri.K.J.Kuriachan today.
3. The learned Senior Counsel submits that though the declaration made by this Court that the 1934 Constitution will apply to the Church cannot be contested at this stage, in view of the judgments of the Hon'ble Supreme Court, he prayed that this Court may not enter into any of the other prayers made in the plaint, since they are no longer relevant. He submitted that another suit has been filed by certain other persons, who are similarly situated as the plaintiffs herein, which is numbered as OS No.17/2016, on the files of the I Additional District Court, Ernakulam, and that issues relating to the conduct of elections to the management of the Church and such other are still pending before it.
4. Even when I hear P. Viswanathan as afore, the fact remains that on account of the judgments of the Hon'ble Supreme Court in P.M.A. Metropolitan and K.S. Varghese (supra), it is enjoined on this Court to declare that the Church is governed by the 1934 Constitution and that none of the defendents shall act in any manner contrary to the said Constitution. This is all that this Court has done in the judgment in question; and I, therefore, do not deem it necessary or appropriate to modify it in any manner, even though I hear the submissions of the learned Senior Counsel that another suit is filed by certain other persons. In any case, the filing of such a suit or its pendency would not in any manner influence this suit since, admittedly, this has been filed invoking the provisions of Order I Rule 8 of the CPC.
Consequently, this motion is closed."
O.P.(C)No.446 of 2021 & :-18-:
C.R.P.No.81 of 2021
5.4. The reliefs sought for in O.S.No.17 of 2016 filed by two parishioners of St.Ignatius Orthodox Syrian Church, Kanjiramattom (Ext.B1 plaint), which is pending consideration before the First Additional District Court, Ernakualm, read thus;
"A. A mandatory injunction removing defendants 3 to 5 and all those persons who claim to be their successors in office and are not elected in accordance with the Malankara Sabha Constitution of 1934 from the posts of Vicar, stewards/ trustees, respectively of the 1st defendant Church. B. A mandatory injunction removing the 6th defendant and all those persons who claim to be his successors in office and are not elected in accordance with the Malankara Sabha Constitution of 1934 and the approved constitution of the St.Ignatius School from the post of the Manager of St.Ignatius School belonging to the 1st defendant Church.
C. A permanent prohibitory injunction restraining defendants 3 to 5 or their agents, servants, supporters, their henchmen and all those persons who claim to be their successors in office and are not elected in accordance with the Malankara Sabha Constitution of 1934 from functioning and discharging the duties as the Vicar, stewards/trustees respectively of the 1 st defendant Church and from interfering in any manner with the lawful administration of the 1st defendant Church and the management of its assets, in accordance with the Malankara Sabha Constitution of 1934.
D. A permanent prohibitory injunction restraining defendants 3 to 8, their agents, servants, supporters and their henchmen from causing any obstruction to the plaintiffs, their supporters who are parishioners of the 1st defendant Church, the 2 nd O.P.(C)No.446 of 2021 & :-19-:C.R.P.No.81 of 2021
defendant and his successors-in-office, Bishops, prelates and other functionaries under the Malankara Sabha Constitution of 1934 from conducting and attending to religious sacraments and any other functions in the 1st defendant Church, its institutions, its cemetery, and its other buildings and properties.
E. A permanent prohibitory injunction restraining defendants 3 to 8, their agents, servants, supporters and their henchmen from inducting or allowing entry into the 1 st defendant Church, its institutions, its cemetery, and its other buildings and properties for any purpose whatsoever, of any Priest, High Priest, Bishop or Metropolitan who is not appointed under 1934 Constitution.
F. A mandatory injunction directing defendants 3 to 5 to handover the administration of the 1 st defendant Church and other buildings together with all the movable properties and all the records retained by them belonging to the 1 st defendant Church including the accounts containing the incomes and expenditure of the 1st defendant Church to the 2 nd defendant or his successor-in-office and the Managing Committee of the 1 st defendant Church elected in accordance with the Malankara Sabha Constitution of 1934.
G. A mandatory injunction directing defendants 3 to 5 and all those persons who claim to be their successors-in-office to account for the income received by them from the 1 st defendant Church.
H. A declaration that only those parishioners who abide by clause 4 and 7 of 1934 Constitution and confess before the Vicar or priest appointed under 1934 Constitution alone are entitled to participate in the Parish Assembly of the 1 st defendant Church.
O.P.(C)No.446 of 2021 & :-20-:C.R.P.No.81 of 2021
I. Allow such other reliefs as may be prayed for and deemed fit by this court.
J. Awarding the cost of the suit."
6. The perpetual fight between the Patriarch faction and the Catholicos faction for managing the affairs of Malankara Orthodox Syrian Church and for control of spiritual and temporal management of affairs of the Parish Churches culminated in the judgment of the Apex Court in K.S. Varghese v. St.Peter's and St.Paul's Syrian Orthodox Church [(2017) 15 SCC 333]. The said decision arises out of three original suits filed under Order I, Rule 8 and Sections 26 and 92 of the Code of Civil Procedure, 1908 (for brevity, 'the Code'), for control of spiritual and temporal management of the affairs of three Parish Churches, namely, Kolenchery Church, Varikoli Church and Mannathur Church.
6.1. The appeals relating to Kolencherry Church arose out of a suit filed by the Patriarch faction to declare that Kolencherry Church (1st defendant Church) its assets, including the educational institutions are liable to be administered only in accordance with Udampady executed on 30.12.2013; to settle a scheme for administration of the Church and its assets; to appoint a Receiver, conduct elections after preparing proper voters list irrespective of their factional affiliations and to entrust management to them; and O.P.(C)No.446 of 2021 & :-21-:
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for a permanent injunction restraining the 3 rd defendant from receiving the key of the Church.
6.2. The appeals relating to Varikoli Church arose out of a suit filed by the Catholicos faction to declare that Varikoli Church (1st defendant Church) is governed by the 1934 Constitution as upheld by the Apex Court and defendants 2 and 3 have no right to claim the status of trustees of the Church; for a permanent prohibitory injunction to restrain defendants 2 and 3 from functioning as trustees of the Church; and for a mandatory injunction directing the 4th defendant to call for immediate pothuyogam of the 1st defendant Church and to hold election of new Managing Committee including trustees and Secretary in accordance with the 1934 Constitution. In the said suit, defendants 13 to 15 raised a counter claim to cause a referendum to ascertain the allegiance of the Parishioners of the 1st defendant Church; to declare that the Church and its assets are to be governed in accordance with the faith and will professed by majority of the Parishioners of the Church; to pass a final decree declaring that the Church and its assets be administered in accordance with the decision of majority of the Parishioners; and permanent injunction against the 3rd defendant, his agents and religious dignitaries and O.P.(C)No.446 of 2021 & :-22-:C.R.P.No.81 of 2021
those who are not accepting spiritual supremacy of Patriarch of Antioch and All the East.
6.3. The appeals relating to Mannathur Church arose out of a suit filed by the Catholicos faction to declare that Mannathur Church (1st defendant Church) is administered by the 1934 Constitution; to declare that defendants 3 to 5 have no right or authority to act as its trustees; permanent prohibitory injunction against defendants 3 to 5 from functioning as its trustees; to direct the 2 nd defendant to call general body for holding elections; and injunction against changing the name of the 1st defendant Church.
6.4. In K.S. Varghese, based on the findings in the judgment, the main conclusions of the Apex Court in Para.228 read thus;
"228. Resultantly, based on the aforesaid findings in the judgment, our main conclusions, inter alia, are as follows:
228.1. Malankara Church is Episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 Constitution fully governs the affairs of the Parish Churches and shall prevail.
228.2. The decree in the 1995 judgment is completely in tune with the judgment. There is no conflict between the judgment and the decree.
228.3. The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the O.P.(C)No.446 of 2021 & :-23-:C.R.P.No.81 of 2021
matters it has decided, in the wake of provisions of Order I Rule 8 and Explanation 6 to Section 11 CPC. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e., Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided.
228.4. As the 1934 Constitution is valid and binding upon the Parish Churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in the so-called exercise of right under Article 25 and Article 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the Churches under the guise of spiritual supremacy of the Patriarch. 228.5. The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara Metropolitan. Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of Malankara Church subject to the riders provided in the 1934 Constitution.
228.6. Full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests), etc. and thereby cannot create a parallel system of administration. The appointment has to be made as per the power conferred under the 1934 Constitution on the concerned Diocese, Metropolitan, etc. concerned. 228.7. Though it is open to the individual member to leave a Church in exercise of the right not to be a member of any O.P.(C)No.446 of 2021 & :-24-:C.R.P.No.81 of 2021
Association and as per Article 20 of the Universal Declaration of Human Rights, the Parish Assembly of the Church by majority or otherwise cannot decide to move Church out of the Malankara Church. Once a trust, is always a trust.
228.8. When the Church has been created and is for the benefit of the beneficiaries, it is not open for the beneficiaries, even by a majority, to usurp its property or management. The Malankara Church is in the form of a trust in which, its properties have vested. As per the 1934 Constitution, the parishioners though may individually leave the Church, they are not permitted to take the movable or immovable properties out of the ambit of 1934 Constitution without the approval of the Church hierarchy.
228.9. The spiritual power of Patriarch has been set up by the appellants clearly in order to violate the mandate of the 1995 judgment of this Court which is binding on the Patriarch, Catholicos and all concerned.
228.10. As per the historical background and the practices which have been noted, the Patriarch is not to exercise the power to appoint Vicar, Priests, Deacons, Prelates etc. Such powers are reserved to other authorities in the Church hierarchy. The Patriarch, thus, cannot be permitted to exercise the power in violation of the 1934 Constitution to create a parallel system of administration of Churches as done in 2002 and onwards.
228.11. This Court has held in 1995 that the unilateral exercise of such power by the Patriarch was illegal. The said decision has also been violated. It was only in the alternative this Court held in the 1995 judgment that even if he has such O.P.(C)No.446 of 2021 & :-25-:C.R.P.No.81 of 2021
power, he could not have exercised the same unilaterally which we have explained in this judgment.
228.12. It is open to the Parishioners to believe in the spiritual supremacy of Patriarch or apostolic succession but it cannot be used to appoint Vicars, Priests, Deacons, Prelates, etc. in contravention of the 1934 Constitution.
228.13. Malankara Church is episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution.
228.14. Appointment of Vicar is a secular matter. There is no violation of any of the rights encompassed under Article 25 and Article 26 of the Constitution of India, if the appointment of Vicar, Priests, Deacons, Prelates (High Priests), etc. is made as per the 1934 Constitution. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned. 228.15. Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc. Even otherwise once the 1934 Constitution has been adopted, the appointment of Vicar, Priests, Deacons, Prelates (high priests), etc. is to be as per the 1934 Constitution. It is not within the domain of the spiritual right of the Patriarch to appoint Vicar, Priests etc. The spiritual power also vests in the other functionaries of Malankara Church.
228.16. The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The O.P.(C)No.446 of 2021 & :-26-:C.R.P.No.81 of 2021
division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the Church being Episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch of Antioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the Parishioners who believe in the spiritual supremacy of the Patriarch.
228.17. The Church and the cemetery cannot be confiscated by anybody. It has to remain with the parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties.
228.18. The faith of Church is unnecessarily sought to be divided vis-à-vis the office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised.
228.19. The authority of Patriarch had never extended to the government of temporalities of the Churches. By questioning O.P.(C)No.446 of 2021 & :-27-:C.R.P.No.81 of 2021
the action of the Patriarch and his undue interference in the administration of Churches in violation of the 1995 judgment, it cannot be said that the Catholicos faction is guilty of repudiating the spiritual supremacy of the Patriarch. The Patriarch faction is to be blamed for the situation which has been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar, etc. in violation of the 1995 judgment of this Court.
228.20. The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even frame bye-laws in violation of the provisions of the 1934 Constitution.
228.21. The Udampadies of 1890 and 1913 are with respect to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field containing provisions O.P.(C)No.446 of 2021 & :-28-:C.R.P.No.81 of 2021
inconsistent with the 1934 Constitution, as per Section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution.
228.22. The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered.
228.23. In otherwise episcopal Church, whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in Section 22, etc. 228.24. The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognised and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution.
228.25. It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit under Order I Rule 8 CPC. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.
O.P.(C)No.446 of 2021 & :-29-:C.R.P.No.81 of 2021
228.26. The 1934 Constitution is appropriate and adequate for management of the Parish Churches, as such there is no necessity of framing a scheme under Section 92 of CPC.
228.27. The plea that in face of the prevailing dissension between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronising parallel systems of administration.
228.28. Both the factions, for the sake of the sacred religion they profess and to pre-empt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted." (underline supplied) 6.5. In K.S. Varghese, before the Apex Court it was contended that the judgment in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma [(1995) Supp. 4 SCC 286] has no binding effect. It would be having only the evidentiary value under Section 13 of the Indian Evidence Act, 1872. Repelling the said contention, the Apex Court held that, the finding in the 1995 judgment, which operates as res judicata is about the binding nature of the 1934 Constitution on the Parishioners and Parish O.P.(C)No.446 of 2021 & :-30-:C.R.P.No.81 of 2021
Churches. The Court has made an exception under the aforesaid judgment with respect to Knanaya Church. It is not open to the Parishioners to contend that they can have their independent Constitution and not bound by the 1934 Constitution. The 1995 judgment cannot be misconstrued so as to confer the aforesaid right upon the Parishioners. The 1995 judgment is clear, unequivocal and unambiguous with respect to binding nature of the 1934 Constitution.
6.6. In K.S. Varghese it was contended that the Parish Churches, even after the 1934 Constitution, can decide to make their own Constitution in the exercise of their fundamental right to freedom of religion under Article 25 of the Constitution of India, so as to follow the faith of spiritual supremacy of the Patriarch.
Repelling the said contention, the Apex Court opined that, it would not be open to any faction or group to adopt any particular system of management of Churches and to have a parallel system of managing authorities under the guise of spiritual supremacy. The mismanagement of Church and chaos cannot be permitted to be created for temporal gains or otherwise. There is a system of management and the spiritual aspect, which has been claimed under the guise of spiritual supremacy, is an effort to illegally take O.P.(C)No.446 of 2021 & :-31-:
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over the management of the Churches by rival factions in derogation of delegation of powers. The power with respect to Orthodox Syrian Church of the East is the Primate, i.e., Catholicos. Though the Primate of the Orthodox Syrian Church is the Patriarch of Antioch, certain spiritual powers have also been vested in Malankara Metropolitan, as per Section 94 of the 1934 Constitution. The prime jurisdiction regarding the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested with the Malankara Metropolitan subject to provisions of the Constitution and under the guise of spiritual supremacy an effort is being made to obtain the appointments of Vicars and Priests as parallel authorities so as to manage the Churches and to render religious services under the guise of Patriarch. On the other hand, there are already Vicars and other authorities appointed as per the 1934 Constitution. Thus, under the garb of spiritual supremacy which had reached a vanishing point due to the establishment of Catholicos and Kalpana, and the 1934 Constitution which has been accepted and is binding, a parallel system of governance of Churches would not be in the interest of the Church and would destroy it.
6.7. In K.S. Varghese, before the Apex Court, it was submitted that, the Parishioners own the property of the Parish O.P.(C)No.446 of 2021 & :-32-:C.R.P.No.81 of 2021
Church and the Cemetery and they cannot be deprived of that right by reason of the office holders of the Parish Churches by not subscribing to the 1934 Constitution. The attempt by Catholicos is to take away ancient Churches and bar the Parishioners from entry to the Churches and Cemetery. Repelling the said submission, the Apex Court held that, the properties would always remain to be Malankara Church properties. Only office-holders have to subscribe to the 1934 Constitution as held by the Court. The Parishioners can take no Church property away, neither Catholicos faction by majority and the submission is based on the misconception as to the nature of rights in such property. It has to remain in Malankara Church. Neither the Church nor the Cemetery can be confiscated by anybody. It has to remain with Parishioners as per the customary rights and nobody can be deprived of right one enjoys being a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in Malankara Church.
It passes comprehension as to how irreconcilable differences in faith have been sought to be created in flimsy manner to divide Church into the Patriarch and Catholicos factions whereas they are part of the Malankara Church, whereas the dominant faith is the common, Malankara Church is one, and Orthodox Syrian Church is O.P.(C)No.446 of 2021 & :-33-:C.R.P.No.81 of 2021
the same. Only intention differs. Hence, law and order situation has arisen which cannot be a scenario for spiritual attainments with embodiment of tolerance and equality of all human beings and living creatures. The depth in sight beyond the sensual eye sight is required for spiritual gains. The Apex Court observed that, for the reasons best known to the parties, fight is going on regarding the management which is wholly uncalled for. If Church has to survive, obviously this must stop and let the blessings of the Christ fall upon the believers, actual followers of his teaching. This is the only way by which we can expect that peace will come to the Church. For the unrest and ugly situation no reason, good, bad or otherwise exist which can be legally recognised.
6.8. In K.S. Varghese, the Apex Court noticed that, faith is tried to be unnecessarily divided vis-a-vis the office of Catholicos and the Patriarch. Faith of Church is in the Jesus Christ. An effort is being made to take over the management and other powers by such an action just to gain control of temporal matters under the garb of spirituality. Even if Vicar performs the functions, which are religious, there would not be infringement of the rights under Article 25 and Article 26 of constitution of India in case the Diocesan Metropolitan appoints Vicar as provided in the O.P.(C)No.446 of 2021 & :-34-:C.R.P.No.81 of 2021
Constitution and it is clear that the Patriarch of Antioch has not reserved this power to himself. As a matter of fact the 1995 judgment settled such disputes, between the parties, in which the Court tried its best to take care of the prevailing situation while passing the decree.
6.9. In K.S. Varghese, it was argued before the Apex Court that the 1995 judgment was rendered to reconcile the two warring faction. The conduct of the Catholicos in refusing to recognise the Patriarch undermines the 1995 judgment. The Apex Court noticed that, as a matter of fact when execution of 1995 judgment was pending, in spite of appointment of Mr. Justice Malimath with consent of the parties to hold the elections, the Patriarch faction took up different stance in gross violation of dictum, and there was breach of Constitution on its part. It was bent upon to circumvent 1995 judgment and created illegally a parallel system of administration and also formed the Constitution 2002 which was totally uncalled for and an impermissible action. After formation of the Constitution of 2002 they held separate meetings of Patriarch groups, and entire system was usurped. This resulted in various law and order problems as projected in the case and Parish Churches remained closed for quite some time. Once there is a Malankara O.P.(C)No.446 of 2021 & :-35-:C.R.P.No.81 of 2021
Church it has to remain as such. No group or denomination can take away the Church and form another group for its management as that would virtually tantamount to usurping its properties and the Church itself. When the Church has been created and is for the benefit of beneficiaries, it is not open for beneficiaries even by majority to usurp its property or management.
6.10. In K.S. Varghese, relying upon the Universal Declaration of Human Rights, which recognises the right to form an association, and further goes on to state that no one can be compelled to be a part of an association, it was argued before the Apex Court that the right to form an association under Article 19(1)
(c) also carries with it the negative right, i.e., the right not to be a part of an association. It was argued that, the 1995 judgment cannot be read as if the appellant Church cannot leave the Malankara Association, as the same would result in infringement of the fundamental rights of the majority of the Parishioners, who belong to Patriarch faction. The Apex Court repelled the said contentions for various reasons. Firstly, no one can deny the right under Article 20 of the Universal Declaration of Human Rights. No one may be compelled to belong to an association. There is no compulsion with any of the Parishioners to be part of the Malankara O.P.(C)No.446 of 2021 & :-36-:C.R.P.No.81 of 2021
Church or Parish Church. There can be an exercise of unfettered volition not to be a part of an association but the question is whether one can form another association within the same association and to run a parallel system of management of the very same Church, which is not permissible. Leaving a Church is not the right denied but the question is whether the existing Malankara Church can be regulated otherwise than by the 1934 Constitution. If the effort of certain group of Patriarch otherwise is to form a new Constitution of 2002 to appoint Vicars, Priests, etc., giving a go by to the 1934 Constitution and to form a new Church under the guise of same Malankara Church, it is not permissible. The Malankara Church, its properties and other matters are to be governed by the 1934 Constitution and even majority of Parishioners has no right to take away and usurp the Church itself or to create new system of management contrary to the 1934 Constitution. It was a trust created as Malankara Church that is supreme, for once a trust always a trust.
6.11. In K.S. Varghese, the Apex Court has laid down that, as per the 1934 Constitution it is clear that while individual Parishioners may choose to leave the Church, there is no question of even a majority of the Parishioners in the Parish Assembly by O.P.(C)No.446 of 2021 & :-37-:C.R.P.No.81 of 2021
themselves being able to take the movable or immovable properties out of the ambit of the 1934 Constitution, without the approval of the Church hierarchy. The Parish Assembly can pass bye-laws that are not inconsistent with the principles contained in the Constitution. The Diocesan Assembly or the Diocesan Council can also suggest and submit to the Managing Committee through the Rule Committee for consideration as provided in Section 129. All agreements, offices and practices which are not consistent with the provisions of the Constitution are made ineffective and have been annulled as provided in Section 132 contained in Part 13 'Miscellaneous'.
6.12. In K.S. Varghese, it was argued that, by majority, decision can be taken to opt out of the 1934 Constitution by the Parish Assembly and to form a new Church under a new name, as has been done in 2002. The Apex Court opined that the Constitution prohibits such a course. Even bye-laws that do not conform to Constitution cannot be framed and that has to be placed before Rule Committee under Sections 126, 127 and 129. In existing system of Malankara Church, a Parish Church, which is a part of Malankara Church, cannot be usurped even by majority in Church under the guise of formation of new Church. The existing O.P.(C)No.446 of 2021 & :-38-:C.R.P.No.81 of 2021
majority at a given time in any Parish Church cannot be permitted to take away the assets of the Church at the expense of those who adhere to the original Trust.
6.13. In K.S. Varghese, the Apex Court noticed that, the majority view in the 1995 judgment refused to give declaration with respect to property in the absence of Parish Churches. However it was observed that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches insofar as the Constitution provides for the same. In the absence of any further prayer made, suffice it to hold that the 1934 Constitution shall govern the affairs of the Parish Churches in respect of temporal matters also insofar as it so provides and discussed by the Court. The Malankara Church is Episcopal to the extent it is so declared in the 1934 Constitution, as held in the 1995 judgment. The 1934 Constitution governs the affairs of Parish Malankara Churches and shall prevail. Otherwise, also, property cannot be taken away by the majority or otherwise and it will remain in Trust as it has been for the time immemorial for the sake of beneficiaries. It is for the benefit of beneficiaries. No one can become owners by majority decision or permitted to usurp Church itself. It has to remain in perpetual succession for the purpose it has been created a Malankara Church. The Parish O.P.(C)No.446 of 2021 & :-39-:C.R.P.No.81 of 2021
Assembly by majority cannot take away the property and divert it to a separate and different Church, which is not a Malankara Church administered as per the 1934 Constitution, though it is open to amend the 1934 Constitution. As the basic documents of creation of Church have not been placed on record, usage and custom for determining the competing claims of rival factions become relevant.
In K.S. Varghese, the Apex Court held that, the 2002 Constitution cannot hold the field to govern the appellant Churches and the 1934 Constitution is binding.
6.14. In K.S. Varghese, the learned counsel appearing on behalf of the respondents in C.A.Nos.3674, 3681 & 3683 of 2015 argued that, the educational institutions are governed by the Kerala Education Act, 1959. Section 6 of the said Act imposes restrictions on alienation of properties of school. The school is governed by bye-laws which are statutorily made and approved under the said Act and the Rules. Thus Udampady of 1913 does not govern educational institutions. The assets of the parish Churches are to be governed by the 1934 Constitution and that of educational institutions as per the 1959 Act and not by Udampady of 1913. In Para.216 of the judgment, the Apex Court held that, the learned counsel for the respondents in CAs Nos.3674, 3681 & 3683 of 2015 O.P.(C)No.446 of 2021 & :-40-:C.R.P.No.81 of 2021
was right in submitting that educational institutions have to be run in accordance with the provisions of the Kerala Education Act, 1959. Educational institutions cannot be governed by the Udampady of 1913, as per Sections 6 and 7 of the Kerala Education Act, 1959. Para.67 and 216 of the judgment read thus;
"67. Shri E.M.S. Anam, learned counsel appearing on behalf of the respondents in CA Nos. 3674, 3681 and 3683 of 2015 has addressed on the scope of the suit. The Church is governed by the 1934 Constitution. The plaint is silent with respect to the properties. There is no pleading regarding the acquisition of the properties, when and how they were acquired, what was the purpose of the acquisition, from where did the consideration come, and from whom the properties were purchased. ............ Udampady does not create, declare, assign, limit or extinguish any right over the immovable property and as such its registration is of no consequence. Udampady cannot prevail over the Constitution. The contention is barred by Order 2 Rule 2 and by virtue of Explanation 6 to Section 11 CPC. The educational institutions are governed by the Kerala Education Act, 1959. Section 6 of the said Act imposes restrictions on alienation of properties of school. The school is governed by bye-laws which are statutorily made and approved by the said Act and the Rules. Thus Udampady of 1913 does not govern educational institutions. Elections have been duly held as held by two courts. The reliefs claimed in the suit are not bona fide. Parish properties do not vest in the parishioners. The assets of the parish Churches are to be governed by the 1934 Constitution and that of educational institutions as per the 1959 Act and not by Udampady of 1913.
O.P.(C)No.446 of 2021 & :-41-:
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xxx xxx xxx
216. Shri Anam, learned counsel, was right in submitting that educational institutions have to be run in accordance with the provisions of the Kerala Education Act. Educational institutions cannot be governed by the Udampady of 1913 as per Sections 6 and 7 of the Kerala Education Act, 1959." (underline supplied)
7. In Mathews Mar Koorilos (dead) v. M. Pappy (dead) [(2018) 9 SCC 672] a Three-Judge Bench of the Apex Court observed that the issue of spiritual and temporal authority between Malankara Church and the Patriarch of Antioch has been the subject matter of several rounds of litigations in various matters right from the year 1879. It is not necessary for the Court to elaborately refer to those litigations; suffice to refer the litigations which led to the Constitution Bench judgment in Moram Mar Basselios Catholicos v. Thukalan Paulo Avira [AIR 1959 SC 31]; the judgment of Three-Judges Bench in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma [(1995) Supp. 4 SCC 286] and the latest judgment in K.S. Varghese v. St.Peter's and St.Paul's Syrian Orthodox Church [(2017) 15 SCC 333].
7.1. Before the Three-Judge Bench it was contended that the conclusions arrived in K.S. Varghese are not in consonance with the judgment in Most Rev. P.M.A. Metropolitan. Repelling the said contention, the Three-Judge Bench held that the conclusions in O.P.(C)No.446 of 2021 & :-42-:
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Para.228 of K.S. Varghese are well in consonance with Thukalan Paulo Avira and Most Rev. P.M.A. Metropolitan judgments. The detailed discussions and conclusions arrived at in K.S. Varghese settle the disputes between the appellant Patriarch and the respondent Malankara.
7.2. In Mathews Mar Koorilos the Three-Judge Bench reiterated that, as per the consistent view taken in Thukalan Paulo Avira, Most Rev. P.M.A. Metropolitan and K.S. Varghese, 1934 Constitution is valid and binding upon the Parishioners. The Parish Church has to be managed as per the powers conferred under the 1934 Constitution. It is not open to any individual Church to have a parallel system of management in the Churches under the guise of spiritual supremacy in the Patriarch. As per the consistent findings in the above judgments, the prime jurisdiction with respect to the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested with Malankara Metropolitan and other authorities appointed by Malankara Metropolitan. Malankara Metropolitan enjoys all the temporal, ecclesiastical and spiritual administrative powers [Para.145 of K.S. Varghese]. As held in K.S. Varghese, full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a O.P.(C)No.446 of 2021 & :-43-:C.R.P.No.81 of 2021
vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests), etc. and thereby cannot create a parallel system of administration.
7.3. In Mathews Mar Koorilos the Three-Judge Bench held that the conclusions in Para.228 of K.S. Varghese are well in consonance with Thukalan Paulo Avira and Most Rev. P.M.A. Metropolitan judgments. The detailed discussions and conclusions arrived at in K.S. Varghese settle the disputes between the appellant Patriarch and the respondent Malankara. The Three-Judge Bench reiterated that, as per the consistent view taken in Thukalan Paulo Avira, Most Rev. P.M.A. Metropolitan and K.S. Varghese, 1934 Constitution is valid and binding upon the Parishioners. The Parish Church has to be managed as per the powers conferred under the 1934 Constitution. It is not open to any individual Church to have a parallel system of management under the guise of spiritual supremacy in the Patriarch. As held in K.S. Varghese, full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point.
Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High O.P.(C)No.446 of 2021 & :-44-:
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Priests), etc. and thereby cannot create a parallel system of administration.
8. In Baby C.J. v. Fr. Jiju Varghese [2019 (2) KHC 692], arising out of the order dated 10.07.2018 in F.A.O.No.96 of 2018 and connected cases, the Apex Court held that, as the controversy in question has been finally decided on 03.07.2017, in the case of K.S. Varghese [(2017) 15 SCC 333], which holds the field, nothing further survives in the matters for adjudication. Consequently, the appeals were disposed of in view of the above judgment and the Apex Court directed all the concerned courts and authorities to act in terms of that judgment. In the said decision, the Apex Court made it clear that, let there be no multiplicity of the litigation on this aspect any more in various courts and that, the decision rendered in representative suit is binding on all.
8.1. In Fr. Issac Mattammel Cor-Episcopa v. St.Mary's Orthodox Syrian Church [(2019) 10 SCC 606], after quoting Para.228 of the decision in K.S. Varghese [(2017) 15 SCC 333], the Apex Court reiterated that, there can be no further litigation as the decision in representative suit is binding and that, it is the constitutional duty of all concerned to obey the judgment and order of the Apex Court. In the said decision, it is made clear that, by the O.P.(C)No.446 of 2021 & :-45-:
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decision in K.S. Varghese the Apex Court intended peace to come in Church. The Apex Court directed the courts to decide all pending matters following the decision in K.S. Varghese, which has been affirmed thereafter umpteen number of times, and restrained all the civil courts and this Court not to pass any order in violation of the mandate of the decision in K.S. Varghese.
8.2. In Varkey U. v. Issac Nedivelil Puthenpura [2019 (3) KHC 689] a Division Bench of this Court observed that the Apex Court in P.M.A. Metropolitan, K.S. Varghese and Mathews Mar Koorilos has categorically stated as to what are the rights and obligations of the disputants in Malankara Church cases and no court in this country can take a different view on the subject.
Para.14 of the said decision reads thus;
"14. We are of the clear view that no court in this country can take a different view on the subject reckoning the binding pronouncements by the Apex Court in P.M.A. Metropolitan v. Moran Mar Marthoma [(1995) Supp. 4 SCC 286], K.S. Varghese v. St.Peter's and Paul's Syrian Orthodox Church [(2017) 15 SCC 333] and Mathews Mar Koorilos v. Pappy [(2018) 9 SCC 672]. Now it is very clear that the Supreme Court has categorically stated as to what are the rights and obligations of the disputants in Malankara Church cases and no court in this country can take a different view on the subject. It has been clarified by the Supreme Court by an O.P.(C)No.446 of 2021 & :-46-:C.R.P.No.81 of 2021
order passed on 19.04.2018 in S.L.P.Nos. 33156-33159/2014 as follows:
"Leave granted.
As the controversy in question has been finally decided in the case of K.S. Varghese v. St.Peter's and St.Paul's Syrian Orthodox Church in CA No. 3674 of 2015 etc. decided on 3rd July, 2017 [(2017) 15 SCC 333], in which it has been laid down that 1934 Constitution holds the field, nothing further survives in the matters for adjudication.
Consequently, the appeals stand disposed of in terms of the above judgment.
Let all the concerned courts and authorities act in terms of the judgment. Let there be no multiplicity of the litigation on this aspect any more in the various courts. The decision rendered in representative suit is binding on all."
8.3. In Baby C.J. [2019 (2) KHC 692] the Apex Court held that, as the controversy in question has been finally decided in the case of K.S. Varghese which holds the field, nothing further survives in the matters for adjudication and that, the decision rendered in representative suit is binding on all. In Fr. Issac Mattammel Cor-Episcopa [(2019) 10 SCC 606], after quoting Para.228 of the decision in K.S. Varghese, the Apex Court reiterated that, there can be no further litigation as the decision in representative suit is binding and that, it is the constitutional duty O.P.(C)No.446 of 2021 & :-47-:
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of all concerned to obey the judgment and order of the Apex Court. By the decision in K.S. Varghese the Apex Court intended peace to come in Church.
9. On 30.09.2020, the decree holders filed E.P.No.565 of 2020 before the First Additional District Court, Ernakulam, to execute the decree in O.S.No.163 of 1977, in terms of the judgment of this Court dated 11.02.2020 in R.F.A.No.427 of 2003. Column No.9 of the execution petition reads thus;
"9. Decree As per the decree, it is declared that the 1 st defendant Church/ St.Ignatius Orthodox Syrian Church, Kanjiramattom be administered in all matters of religious worship and administration of assets as per the 1934 Constitution by allowing the Regular First Appeal R.F.A.No.427 of 2003 of the High Court of Kerala dated 11.02.2020."
Column No.12 of the execution petition, which deals with the mode in which the assistance of the court is required, reads thus;
"12. The mode in which the assistance of the court is required;
(a) Issue warrant against the judgment debtors and to direct them to handover the i. Key of the Church;
ii. Key of the office room (parsonage);
iii. Key of the Parish Hall;
iv. Key of the offertory boxes installed in five places;
v. Documents of landed properties of the Church;
O.P.(C)No.446 of 2021 & :-48-:
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vi. Registers such as Marriage Register, Baptism
Register, funeral register, etc.;
vii. Several articles such as gold plated cross, silver
plated cross, wooden cross and other items being used in the Church;
viii. The ambulance vehicle No.KL-39/G-9734 belonging to the Church;
ix. Key/all keys of St.Ignatius Vocational and Higher Secondary School building.
(b) issue order of attachment of the properties of judgment debtors' ensuring the execution of the decree.
(c) issue such other reliefs that are deemed fit and proper in the course of the proceeding of execution being conducted by this Hon'ble Court."
9.1. On 05.11.2020, the judgment debtors filed their objection to E.P.No.565 of 2020 in O.S.No.163 of 1977, contending that the execution petition is really misconceived, since there is no injunction, either mandatory or prohibitory, in terms of the judgment in R.F.A.No.427 of 2003. There is no allegation in the execution petition that the judgment debtors have violated the decree. As there is no decree in R.F.A.No.427 of 2003 to hand over the articles mentioned in column No.12 of the execution petition, no arrest warrant can be issued for handing over those articles. O.S.No.17 of 2016, a suit instituted under Section 92 read with Order I Rule 8 of the Code of Civil Procedure, is now pending before O.P.(C)No.446 of 2021 & :-49-:
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the First Additional District Court, Ernakulam, for various reliefs, including mandatory injunction for removal of the judgment debtors in E.P.No.565 of 2020 from the management of the Church and the School and also for handing over the administration, including the articles mentioned in column No.12 of the said execution petition. Arrest and attachment against the respondents cannot be ordered, as they have not violated the decree. Eo-nominee plaintiffs 2 to 4 in O.S.No.163 of 1977 are alive and the execution petition filed as E.P.No.565 of 2020, without them in the party array, is not maintainable. The Church, the 1st defendant in O.S.No.163 of 1977, is not made a party to the execution petition. Moreover, decree holders 2 and 3 in E.P.No.565 of 2020 have no locus standi to institute that execution petition, which does not even disclose their competence to institute the same.
9.2. On 30.09.2020, along with E.P.No.565 of 2020, the decree holders filed E.A.No.709 of 2020, under Order XXXIX Rule 1 of the Code of Civil Procedure, seeking an order of prohibitory injunction, prohibiting the 5th judgment debtor/his successors from effecting any sort of appointment in St.Ignatius Vocational Higher Secondary School, Kanjiramattom, pending execution of the decree.
In the affidavit filed in support of E.A.No.709 of 2020, it is averred O.P.(C)No.446 of 2021 & :-50-:
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that, St.Ignatius Orthodox Syrian Church is the Educational Agency of the said school. The General Body of the Church has been convened, following the procedure prescribed in the 1934 Constitution, and the office bearers of the school have been elected. The 3rd decree holder in E.P.No.565 of 2020 has been elected as the Manager of the school, by the Committee. The term of the present Manager, i.e., the 5 th judgment debtor, who is continuing as Manager of the school, on temporary basis, has already expired on 18.05.2020. He is attempting to effect appointment to the vacancies, for which he has no right or authority. The proposal for change of management has already been submitted before the District Educational Officer, Ernakulam, which is pending consideration. The 5 th judgment debtor has filed a writ petition challenging the letter issued by the District Educational Officer, for production of certain documents.
9.3. On 01.10.2020, the execution court granted an ad interim injunction in E.A.No.709 of 2020 as prayed for, till the disposal of that application. On 09.10.2020, the 5 th judgment debtor in E.P.No.565 of 2020 filed counter affidavit in E.A.No.709 of 2020 by contending that the decree holders have obtained the ad interim injunction by misleading the court. In view of the provisions O.P.(C)No.446 of 2021 & :-51-:C.R.P.No.81 of 2021
under Sections 11 and 33 of the Kerala Education Act, 1956 and Chapter III of the Kerala Education Rules, 1959, civil courts have no jurisdiction to pass any temporary injunction or to make an interim order against the Manager of an educational institution, under the provisions of the Code of Civil Procedure. He is the present Manager of the school. In view of the law laid down in the judgments of this Court, including the judgment of the Full Bench, interpreting the above statutory provisions, no temporary injunction can be granted by a civil court, restraining the Manager of an aided school from making appointment of teachers. In the counter affidavit, the 5th judgment debtor reserved his right to file a detailed counter affidavit, controverting various allegations raised in the affidavit filed in support of E.A.No.709 of 2020, and also on the maintainability of E.P.No.565 of 2020. After considering the rival contentions, the execution court, by the order dated 23.10.2020 in E.A.No.709 of 2020 in E.P.No.565 of 2020, vacated the ad interim injunction granted on 01.10.2020. Paragraphs 6 to 8 and also the last paragraph of that order read thus;
"6. Point No.1: Under Section 33 of the Kerala Education Act, civil courts have no jurisdiction to grant injunction either temporary or interim under the provisions of the CPC. In A.M.S. Mannadiar v. State [ILR 1995 (2) Ker 541], the Full Bench of the Hon'ble High Court has held that in view of O.P.(C)No.446 of 2021 & :-52-:C.R.P.No.81 of 2021
Section 33, civil court has no jurisdiction to grant any temporary injunction or make any interim order restraining any proceeding which is being or about to be taken under the Kerala Education Act. It is followed by the Hon'ble High Court in Damodaran v. Vasudevan [1990 (2) KLJ 583], Kamalakshị Amma v. Kathiyani Amma [1999 (2) KLT 552] and Shalini K v. Ramanand R. [2019 (1) KLJ 936]. The Kerala Education Act itself provides remedy for any aggrieved party. In view of the statutory prohibition it is found that this court is having no jurisdiction to grant any temporary or prohibitory order as prayed against the respondents.
7. Point No.2: It is in evidence that there were numerous proceedings for the same Church. According to the petitioners, the Manager was removed and there is a decree.
No such judgment or decree is produced before the court. As per the judgment and decree of the Hon'ble High Court in RFA, the Hon'ble High Court has only declared that St.Ignatius Orthodox (Jacobite) Syrian Church has to be administered in all matters of religious worship and administration of assets as per the 1934 Constitution. Some of the rival faction has filed O.S.No.17 of 2016 for removing the Manager, the 6th defendant in the suit. The second prayer among others is for the same. So, admittedly, even now the Manager elected is in administration of the school. Though the petitioners have a case that they have conducted an election as per the 1934 constitution on 08.03.2020 and members was elected, no documents are produced to prove this fact. On the other hand, the Vicar in the earlier mentioned suit filed an affidavit on 16.03.2020 stating that the entire records were irrecoverably lost. So also the O.P.(C)No.446 of 2021 & :-53-:
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present petitioners filed I.A.Nos.14 of 2020 and 15 of 2020 for getting themselves impleaded in the suit. These were also withdrawn by them.
8. In K.S. Varghese Case, the Hon'ble Supreme Court has held that the school has to be governed as per the Kerala Education Act and relevant provisions (paragraph 176). The respondents have produced the copy of the judgment of the Hon'ble High Court in RP No. 694 of 2020 in W.P.(c) No.15943 of 2020 dated 01.10.2020. From the judgment it appears that the Hon'ble High Court has found that the present 5th JD is the approved Manager. The Hon'ble High Court further reviewed and recalled the order obtained from it by suppressing material facts. It is revealed that three matters are pending before the Hon'ble High Court. It is very clear that it is suppressing all these facts, and by distorting the facts, the petitioners have obtained an interim order. The learned counsel appearing for the petitioners placed several decisions in support of his contentions found that they are not relevant for considering the present E.A. Hence not considered.
In the result, the interim order dated 01.10.2020 is vacated forthwith. Communicate order to the concerned parties."
(underline supplied) 9.4. Along with E.A.No.709 of 2020, the decree holders in E.P.No.565 of 2020 filed E.A.No.710 of 2020, under Section 151 of the Code of Civil Procedure, seeking an order directing the judgment debtors/successors to handover to the decree holders the following articles and records, in terms of the decree;
O.P.(C)No.446 of 2021 & :-54-:
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i. Key of the Church;
ii. Key of the office room (parsonage);
iii. Key of the Parish Hall;
iv. Key of the offertory boxes installed in five places;
v. Title documents of landed properties of the Church;
vi. Registers such as Marriage Register, Baptism Register,
funeral register, etc.;
vii. Articles such as gold plated cross, silver plated cross,
wooden cross and other items being used in the
Church;
viii. The ambulance vehicle No.KL-39/G-9734 belonging to the Church;
ix. Key/all keys of St.Ignatius Vocational and Higher Secondary School building.
9.5. On 28.10.2020, the 5th judgment debtor in E.P.No.565 of 2020 filed counter affidavit in E.A.No.710 of 2020, pointing out that, as clear from the averments in the affidavit filed in support of the execution application and also the reliefs sought for, judgment debtors 1 to 5 are now managing the Church and the school. The decree in R.F.A. No.427 of 2003 is only a declaratory decree and no execution petition will lie for executing a declaratory decree. There is no decree of mandatory injunction directing handing over of the articles mentioned in the execution application. O.S.No.17 of 2016 filed seeking the relief of mandatory injunction for removal of the judgment debtors in E.P.No.565 of 2020 and also for handing over O.P.(C)No.446 of 2021 & :-55-:
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the administration of the Church and the school and also articles, is now pending consideration before the First Additional District Court, Ernakulam. In O.S.No.17 of 2016 (Ext.B1), the judgment debtors in E.P.No.565 of 2020 have filed written statement with counter claim (Ext.B2) for conducting proper election, with participation of all eligible Parishioners, as per the 1934 Constitution, under the supervision of court. In the counter affidavit it is contended that, they are entitled to keep the articles referred to in E.A.No.710 of 2020, till their successors are properly elected, in accordance with the 1934 Constitution.
9.6. On 14.10.2020, the decree holders in E.P.No.565 of 2020 filed E.A.No.780 of 2020 under Section 51(e) read with Order XXI Rule 32 of the Code of Civil Procedure, seeking an order directing the 6th respondent District Educational Officer, Ernakulam to approve change of management of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, based on the application already made and a prohibitory injunction prohibiting the 5th judgment debtor or his successors from functioning as the Manager of the school, in execution of the decree. In the affidavit filed in support of E.A.No.780 of 2020, the decree holders have reiterated the contentions raised in the affidavit filed in support of E.A.No.709 of O.P.(C)No.446 of 2021 & :-56-:C.R.P.No.81 of 2021
2020. In paragraph 6 of that affidavit, it is averred that, pursuant to the Edavaka Yogam/General Body held on 08.03.2020, the Committee elected to administer the affairs of the school convened a meeting on 10.03.2020, in which the 3 rd decree holder was elected as the Manager. Thereafter, application for change of management was submitted before the District Educational Officer, which is pending consideration. The 5 th judgment debtor was elected as the Manager of the school, as the nominee of the Patriarch faction, when the dispute was pending decision in R.F.A. No.427 of 2003, based on an interim order permitting both faction to conduct religious ceremonies. In the affidavit it is contended that, even though writ petitions are pending, the relief sought for by the 5th judgment debtor has become infructuous and it will not affect the right of the decree holders for consideration of their application for change of management by the District Educational Officer. The conduct of the District Educational Officer in not approving change of management, based on the applications already made, is highly illegal and violative of the judgment of the Apex Court in K.S. Varghese [(2017) 15 SCC 333], St.Mary's Orthodox Church and others v. State Police Chief and others [2019 (3) KLT 419 SC] and also the undertaking given before O.P.(C)No.446 of 2021 & :-57-:C.R.P.No.81 of 2021
this Court in R.F.A.No.427 of 2003.
9.7. On 28.10.2020, the 5th judgment debtor filed counter affidavit in E.A.No.780 of 2020, reiterating the contentions raised in the counter affidavit filed in E.A.No.709 of 2020, pointing out that, with substantially same averments the decree holders filed E.A.No.709 of 2020, which has already been dismissed by the order dated 23.10.2020. Therefore, E.A.No.780 of 2020 is also liable to be dismissed on the very same reasoning.
9.8. On 14.12.2020, the District Educational Officer, Ernakulam, the 6th respondent in E.A.No.780 of 2020, filed statement stating that the 5th judgment debtor was elected as the Manager of St.Igantius Vocational Higher Secondary School, Kanjiramattom, with effect from 21.05.2010 and that appointment was approved vide order dated 18.09.2010. The term of appointment, as per the approved constitution of the Educational Agency, is 5 years. The Managing Committee again elected the 5 th judgment debtor as the Manager of the school, for another 5 years from 19.05.2015. That appointment was also approved by the District Educational Officer. Accordingly, the term of his appointment expired on 18.05.2020. On 18.05.2020, the 5 th judgment debtor submitted a request seeking permission for O.P.(C)No.446 of 2021 & :-58-:C.R.P.No.81 of 2021
extension of his term of appointment till a new Managing Committee and Manager are elected. Such a request was made on the ground that, due to COVID-19 pandemic, the General Body meeting of St.Ignatius Orthodox Syrian Church could not be conducted to elect a new Managing Committee of the Educational Agency. As per the approved constitution of the Educational Agency, the existing Manager can continue in office till a new Manager is appointed. On 25.05.2020, the 3rd decree holder submitted a request, raising objection against the functioning of the 5 th judgment debtor as the Manager of the school, after the term of his appointment. Based on that objection, the District Educational Officer called for a report from the 5 th judgment debtor as to whether any General Body has been conducted to elect a new Manager. On 24.07.2020, one Mathew Pulimoottil submitted a request along with an application for change of management of the school, claiming that the Managing Committee of the school elected the 3rd decree holder as the Manager, in the meeting convened on
10.03.2020, and sought for approval of the same. The 3 rd decree holder filed W.P.(C)No.15943 of 2020 before the High Court for speedy disposal of that application. The High Court by the judgment dated 05.08.2020 directed the District Educational Officer to O.P.(C)No.446 of 2021 & :-59-:
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consider and dispose of that application, within 60 days from the date of receipt of the judgment, after hearing the parties involved in the matter. In compliance to that judgment, the District Educational Officer sought records relating to the meeting of the Managing Committee held on 10.03.2020, from the 3 rd decree holder, who did not submit the original minutes. The 5 th judgment debtor filed R.P.No.694 of 2020, in which the High Court recalled the judgment dated 05.08.2020 in W.P.(C)No.15943 of 2020 and posted the case along with W.P.(C)Nos.16547 of 2014, 2719 of 2016 and 17731 of 2020. Since W.P.(C)No.17731 of 2020 filed by the 5th judgment debtor against the approval of the 3rd decree holder as the Manager of the school is under consideration before the High Court, the 6th respondent District Educational Officer is not in a position to take a decision in the matter of approval of appointment of the 3rd decree holder as the Manager of the school.
9.9. Along with E.A.No.780 of 2020, the decree holders in E.P.No.565 of 2020 filed E.A.No.781 of 2020, under Order XL Rule 1 read with Section 151 of the Code of Civil Procedure, seeking an order to appoint the District Educational Officer, Ernakulam as Receiver, in order to function as the Manager of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, on temporary O.P.(C)No.446 of 2021 & :-60-:C.R.P.No.81 of 2021
basis, pending consideration of the application for change of management made by the 3rd decree holder. In the affidavit filed in support of E.A.No.780 of 2020, which contains averments substantially similar to that contained in the affidavit filed in support of E.A.No.781 of 2020, it is contended that, the objection raised by the District Educational Officer to E.A.No.709 of 2020, after referring to the provisions of the Kerala Education Act and the Kerala Education Rules that the authorities under that Statute alone can restrict the power of the Manager, no longer survive, since the judgment in K.S. Varghese is the law declared by the Apex Court under Article 141 of the Constitution of India, which the District Educational Officer is bound to implement, as per the mandate of Article 144. The provisions under the Kerala Education Act and that under the Kerala Education Rules and also the powers extended to the statutory authorities thereunder cannot and will not override the above constitutional mandate.
9.10. On 28.10.2020, the 5th judgment debtor in E.P.No.565 of 2020 filed counter affidavit in E.A.No.781 of 2020, pointing out the dismissal of E.A.No.709 of 2020, by the order dated 23.10.2020, and contending that E.A.No.781 of 2020 filed seeking an order to appoint the District Educational Officer as the Receiver O.P.(C)No.446 of 2021 & :-61-:C.R.P.No.81 of 2021
of the school is not maintainable in law, which is even in conflict with the provisions contained in the Kerala Education Act and the Rules made thereunder. Though the 1st decree holder is the Vicar of the Church, the 2nd decree holder is not the elected trustee of the Church and the 3rd decree holder is not the elected Manager of the school. No General Body meeting of the Church was conducted on 08.03.2020 and the office bearers of the management of the Church and that of the school were not elected. O.S.No.17 of 2016, in respect of the very same Church, seeking various reliefs, including removal of the judgment debtors from the management of the Church and the school, is pending consideration. In the said suit (Ext.B1), the judgment debtors have filed written statement (Ext.B2) dated 22.02.2019 practically conceding the plaint claim, but raising a counter claim to conduct fair, proper and democratic election in accordance with the 1934 Constitution, under the supervision of court. Thereupon, the decree holders along with the former Vicar of the Church, who is arrayed as the 2 nd defendant in O.S.No.17 of 2016, created false, fabricated and forged documents regarding a parish assembly meeting alleged to have been held on 08.03.2020. In paragraph 8 of the counter affidavit, it is stated that, the decree passed by this Court in R.F.A.No.427 of 2003 is to O.P.(C)No.446 of 2021 & :-62-:C.R.P.No.81 of 2021
the effect that St.Ignatius Orthodox Church, Kanjiramattom, is to be administered in all matters as per the 1934 Constitution. All the parishioners including the judgment debtors are accepting this verdict and also that in K.S. Varghese and accordingly, they have stopped parallel services, which were being conducted on the basis of the interim orders passed in R.F.A.No.427 of 2003. On 04.03.2020, the judgment debtors have voluntarily filed affidavit (Ext.A11) dated 04.11.2020 in O.S.No.17 of 2016 and stopped parallel services on the basis of the aforesaid judgments. Keys and records can be handed over to the new office bearers, properly elected with the participation of all eligible parishioners, for which the judgment debtors have raised a counter claim in O.S.No.17 of 2016. The judgment debtors, who are the elected office bearers, were not removed from the post, as prayed for in O.S.No.17 of 2016. There was no General Body meeting on 08.03.2020 and the minutes produced before the District Educational Officer and also before the execution court is a bogus, false and fabricated document. The 5th judgment debtor was elected as the Manager of the school, not by the Patriarch faction, but by the parish assembly.
The 3rd decree holder filed W.P.(C)No.15943 of 2020 before the High Court suppressing true facts and without impleading the 5 th O.P.(C)No.446 of 2021 & :-63-:
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judgment debtor and obtained orders behind his back, for consideration of the application made before the District Educational Officer for approval of change of management. On getting information regarding the said judgment, he filed R.P.No.694 of 2020 seeking review of that judgment, stating true and correct facts. Accordingly, by the order in that review petition, the judgment passed in W.P.(C)No.15943 of 2020 stand recalled and that writ petition along with connected matters are listed for hearing. In the counter affidavit, the 5 th judgment debtor has also raised various contentions as to the maintainability of E.A.No.781 of 2020 and even the maintainability of E.P.No.565 of 2020.
9.11. On 14.12.2020, the District Educational Officer, Ernakulam, the 6th respondent in E.A.No.781 of 2020, filed statement raising contentions similar to that raised in the statement filed in E.A.No.780 of 2020.
9.12. Before the execution court, E.P.No.565 of 2020 was heard on 14.12.2020. The execution court noticed that the first point that has to be considered is as to whether there was a valid election on 08.03.2020, as claimed by the decree holders. In the objection filed by the District Educational Officer to E.A.No.780 of 2020, it is stated that the decree holders had approached him, O.P.(C)No.446 of 2021 & :-64-:C.R.P.No.81 of 2021
contending that office bearers were elected in the election held on 10.03.2020. However, no original documents were produced. In such circumstances, the execution court by the order dated 14.12.2020 directed the decree holders to produce the original of the following documents;
(i) Kalpana of Diocesan Metropolitan appointing the 1 st decree holder as the Vicar of the Church;
(ii) Parish register;
(iii) Parish assembly register;
(iv) Voters list;
(v) Notice of the proposed election;
(vi) Minutes - decision of Edavaka Yogam approved by the
Diocesan Metropolitan;
(vii) Confession register.
9.13. Before the execution court, Exts.A1 to A14 were marked on the side of the judgment debtors. On the side of the decree holders, Exts.B1 to B17 were marked. Both sides have not chosen to adduce any oral evidence. The document marked as Ext.A6 is a copy of the minutes of Edavaka Yogam of St.Ignatius Orthodox Church, Kanjiramattom, dated 08.03.2020. Ext.A7 is a copy of the minutes of the Managing Committee of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, dated 10.03.2020. The document marked as Ext.B13 is a copy of the plaint in O.S.No.327 of 2020 filed before the Munsiff's Court, Ernakulam. The document O.P.(C)No.446 of 2021 & :-65-:
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marked as Ext.B16 is a copy of the FIR in Crime No.978 of 2020 of Mulanthuruthy Police Station, alleging offence punishable under Sections 120B, 403, 464, 465 and 34 of the Indian Penal Code, 1860, in relation to Exts.A6 and A7 minutes.
9.14. O.S.No.327 of 2020 is one filed on 19.05.2020, by one Joshy C. Abraham and Jiso Rajan, seeking a decree of mandatory injunction, directing the 2nd defendant Vicar of the 1st defendant St.Ignatius Orthodox Church, Kanjiramattom or his successor to prepare the voters' list of the Church by incorporating all eligible and qualified Parishioners in accordance with the 1934 Constitution and to conduct election to the Managing Committee of the Church and to the Managing Committee of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, in accordance with the 1934 Constitution and the approved constitution of the school; and for other consequential reliefs. The reliefs sought for in O.S.No.327 of 2020 read thus;
"A. pass a decree of mandatory injunction, directing the 2 nd defendant or his successors to prepare the Edavaka Register of the 1st defendant Church;
B. mandatory injunction, directing the 2 nd defendant or his successor to prepare the voters' list of the 1 st defendant Church by incorporating all eligible and qualified parishioners in accordance with the 1934 Constitution and further direct to conduct election to the Managing Committee of the 1 st O.P.(C)No.446 of 2021 & :-66-:C.R.P.No.81 of 2021
defendant church and the Managing Committee of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, in accordance with the 1934 Constitution and the approved constitution of the school;
C. grant a decree of permanent prohibitory injunction, restraining the 2nd defendant or his successors from convening the General Body meeting of the 1 st defendant Church for conducting election to the managing committee of the 1 st defendant Church and the Managing Committee of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, without preparing the voters' list of all eligible and qualified parishioners, in accordance with the 1934 Constitution and in accordance with the judgment of the Honorable Supreme Court of India in K.S. Varghese's case."
10. The execution court by the impugned order dated 06.02.2021 allowed E.P.No.565 of 2020 in O.S.No.163 of 1977 and the judgment debtors are directed to handover items (i) to (xi) mentioned in column 12(a) of the execution petition to the 1st decree holder Vicar, within seven days from the date of order, failing which the decree holders are permitted to get the same with the assistance of the court and to realise the expenses, if any, incurred. In view of the above findings in the execution petition, the execution court found that no separate orders are required in E.A.No.710 of 2020. Hence, E.A.No.710 of 2020 was also allowed. The execution court allowed E.A.No.780 of 2020 and the 6 th O.P.(C)No.446 of 2021 & :-67-:
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respondent District Educational Officer, Ernakulam is directed to approve change of management of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, based on the application made by the decree holders. The 5th judgment debtor is restrained from functioning as the Manager of the school, forthwith. If the 5 th judgment debtor is not doing so, the decree holders are permitted to execute the decree with the assistance of the court. In view of the order in E.A.No.780 of 2020, the prayer for appointment of Receiver as sought for in E.A.No.781 of 2020 was not allowed. The operative portion of the said order reads thus;
"1. In view of the foregoing discussions: E.P is allowed as follows:
The JDs are directed to handover the following items mentioned in 12(a) i to ix in the EP to the first decree holder vicar within 7 days from the date of this order failing which the decree holders are permitted to get the same with the assistance of the court and to realise the expense if any incurred.
i. key of the Church;
ii. key of the office room;
iii. key of the parish hall;
iv. key of the offertory boxes installed in five places;
v. documents of landed properties of the Church;
vi. registers such as marriage register, baptism
register, funeral register etc.;
O.P.(C)No.446 of 2021 & :-68-:
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vii. Articles such as gold plated cross, silver plated cross, wooden cross and other items being used in the Church;
viii. The ambulance vehicle No.KL-39/G-9734 belonged to the Church;
ix. Key/all keys of the St.Ignatius Vocational and Higher Secondary school building.
2. In view of the above findings, no separate orders are required in E.A.No.710 of 2020. Hence, E.A.No.710 of 2020 is also allowed.
3. E.A.No.780 of 2020 is allowed and the 6th respondent DEO Ernakulam is directed to approve the change of management application submitted by the decree holders. The 5th JD is restrained from functioning as the manager of St.Ignatius Vocational and Higher Secondary School, Kanjiramattom forthwith. If the 5th JD is not doing so, the decree holders are permitted to execute the decree with the assistance of the court.
4. In view of the order in E.A.No.780 of 2020, the prayer for appointing a receiver as prayed in E.A.No.781 of 2020 is not allowed."
10.1. Before the execution court, the judgment debtors contended that the declaratory decree in O.S.No.163 of 1977, in terms of the judgment dated 10.02.2020 of this Court in R.F.A.No.427 of 2003 is not executable, relying on the decision of the Apex Court in State of M.P. v. Mangilal Sharma [(1998) 2 SCC 510]. In the order dated 06.02.2021, the execution court repelled the said contention, holding that, since the suit was O.P.(C)No.446 of 2021 & :-69-:
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decreed as per the declaration in K.S. Varghese, the Church in this case is also to be administered as per the directions in Para.228 of the said decision. Paragraph 16 of the said order of the execution court reads thus;
"16. Points 1 to 5: For the sake of convenience the points are discussed together. The suit was filed before the Munsiff's Court, Ernakulam in the year 1976. It was thereafter transferred to this court and renumbered. The suit was dismissed on 13.10.2003. Aggrieved by the same the matter was taken up in appeal before the Hon'ble High Court. The Hon'ble High Court decreed the suit. Ext.A2 is the judgment and Ext.A1, the decree. The suit was decreed as per the declaration of the Hon'ble Supreme Court in K.S. Varghese's case. It was declared that the St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattom be administered in all matters of religious worship and administration of assets as per the 1934 Constitution. The other reliefs sought for in the suit were not allowed. The learned counsel appearing for the J.Ds relying on the dictum laid down by the Hon'ble Supreme Court in State of M.P. v. Mangilal Sharma [(1998) 2 SCC 510] argued that being a simple declaratory decree it is not executable. The argument cannot be upheld because the suit was decreed as per the declaration in K.S. Varghese's case. In K.S.Varghese's case, the Hon'ble Supreme Court in Paragraph 184 has given the conclusions vide 28 clauses. The clauses will go to show how the Church and its assets are to be administered as per the 1934 Constitution. So, based on the declaration, the Church in this case is also bound to be administered as per the 28 directions in the conclusion part." (underline supplied) O.P.(C)No.446 of 2021 & :-70-:C.R.P.No.81 of 2021
10.2. Before the execution court, the judgment debtors pointed out the pendency of O.S.No.17 of 2016, seeking reliefs with respect to the administration of the Church and its assets. It was contended that the pendency of O.S.No.17 of 2016 is a bar for the decree holders in prosecuting the execution petition. Repelling the said contention, the execution court held that O.S.No.17 of 2016 is a subsequent suit, which ought to have been stayed under Section 10 of the Code of Civil Procedure. Being a subsequent suit, even if the decree holders have got themselves impleaded in that suit, it is not a bar for them to prosecute the execution petition. Paragraphs 17 to 19 of the order of the execution court dated 06.02.2021 read thus;
"17. The learned counsel appearing for the JDs pointed out the pendency of O.S.No.17 of 2016 with respect to the same Church before this court. In the suit also, similar reliefs are sought for with respect to the administration of the assets and the Church. It is also a suit under representative capacity. The suit was filed on 06.07.2012, i.e., during the pendency of the present suit, which is also a representative suit. So the maintainability of that suit itself is doubtful. Moreover, while hearing the appeal, RFA No.427 of 2003, the pendency of the suit was brought to the notice of the Hon'ble High Court. It was after considering the same, the present judgment and decree was passed. The Hon'ble High Court advised the parties to work out the remedies in that case.
O.P.(C)No.446 of 2021 & :-71-:C.R.P.No.81 of 2021
18. Ext.B1 is the copy of the plaint in O.S.No.17 of 2016. Ext.B2 is the written statement with counter claim filed by the defendants 6, 7 and 8 in it. Ext.B3 will go to show that the present second decree holder has filed an impleading petition I.A.No.3691 of 2019. It is admitted that it was later withdrawn. Ext.R4 is another impleading petition filed by the third decree holder who was the additional 12 th defendant there. He was impleaded in the proceedings. He also filed written statement with counter claim but later has withdrawn from the suit. Ext.B5 is the copy of the written statement of the decree holder in the suit. Ext.B6 is the interlocutory application filed for withdrawing him from the suit.
19. The second decree holder also filed I.A.No.14 of 2020 to implead him as additional 13th defendant. It was also allowed and later he also withdrew from the same. The learned counsel appearing for the JDs would say that because of the impleadment and subsequent withdrawal from that case, the decree holders 2 and 3 are prevented from contesting this execution petition in view of Order IX Rule 9 CPC. I have already mentioned that O.S.No.17 of 2016 is a subsequent suit to this suit. It ought to have been stayed under Section 10 CPC. Being a subsequent suit even if the decree holders have got themselves impleaded in the other suit, I am of the view that it is not a bar for them to contest the execution petition."
10.3. In O.S.No.17 of 2016, the defendants filed I.A.No.17 of 2020 (Ext.B9) seeking an order of injunction, restraining the plaintiffs, their men and agents and anybody claiming under them from claiming any right for the administration of St.Ignatius O.P.(C)No.446 of 2021 & :-72-:
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Orthodox (Jacobite) Syrian Church and St.Ignatius Vocational Higher Secondary School, Kanjiramattom. In the affidavit filed in support of Ext.B9 interlocutory application, it is alleged that the claim of the 2nd defendant Vicar that the parish assembly was convened on 08.03.2020 is on the basis of false, forged and fabricated records. The said fact was not disclosed in the affidavit filed by the 2nd defendant on 16.03.2020.
10.4. In the order dated 06.02.2021, the execution court noticed that, in O.S.No.17 of 2016 the 2 nd judgment debtor in E.P.No.565 of 2020, who is the 7th defendant in O.S.No.17 of 2016, filed an affidavit (Ext.A11) stating that they are not continuing parallel service in the Church. Paragraph 20 of the order of the execution court dated 06.02.2021 reads thus;
"20. In the second suit, the second JD/7 th defendant filed an affidavit stating that they are not continuing parallel service in the Church. Ext.B9 is an injunction application, I.A.No.17 of 2020. The interlocutory application is still pending. In the interlocutory application, it was undertaken that the defendants will not do anything as per the alleged election held in the Church on 08.03.2020." (underline supplied) 10.5 By the order of this Court dated 04.06.2021, both sides were asked to clarify on the undertaking referred to in Para.20 of the impugned order dated 06.02.2021. Thereafter, during the O.P.(C)No.446 of 2021 & :-73-:C.R.P.No.81 of 2021
course of further arguments, it was pointed out by the learned Senior Counsel on both sides that none of the defendants in O.S.No.17 of 2016 gave any undertaking before the court below that they will not do anything as per the alleged election held in the Church on 08.03.2020.
10.6. Before the execution court, it was contended that E.P.No.565 of 2020 filed by the present Vicar and 2 others is not maintainable since plaintiffs 2 to 4 in O.S.No.163 of 1977, who are alive, have not chosen to file the execution petition. Repelling the said contention, the execution court held that O.S.No.163 of 1977 being a representative suit, any parishioner, who is entrusted with the management and administration of the assets of the Church, can maintain the execution petition. Paragraph 21 of the order of the execution court dated 06.02.2021 reads thus;
"21. It is an admitted fact that the plaintiffs 2 to 4 in this suit are alive and not parties to the execution petition. The execution petition is filed by the present Vicar, trustee and manager of the Church. Being a representative suit, any parishioner who is entrusted with the management and administration of the assets of the Church can maintain the execution petition. Ext.A3 is the Kalpana dated 28.08.2020 of the Metropolitan appointing the first decree holder as the Vicar of the Church. Exts.A4 and A5 are the proceedings of the Metropolitan with respect to this Church. The entire assets belongs to the Church. As per the 1934 Constitution it is the O.P.(C)No.446 of 2021 & :-74-:C.R.P.No.81 of 2021
vicar who has to manage the assets of the Church. So, definitely the first decree holder is entitled to represent the Church even though the Church is not party to the execution petition." (underline supplied) 10.7. Before the execution court, it was contended that the judgment debtors are still parishioners of the Church and are entitled to participate in the religious services and administration of the assets of the Church. The judgment debtors have produced the relevant registers in support of their claim. The execution court observed that, after the split in the year 2002, only members belonging to Orthodox faction are the parishioners in the Church.
There is not even a scrap of paper to show that the judgment debtors or any of the members, who went away from the Church in the year 2002, following the Patriarch, have ever accepted 1934 Constitution or have applied for membership in the Church.
Therefore, the execution court held that, neither the judgment debtors nor those, who did not accept the 1934 Constitution, can participate in the religious services and administration of the Church. Paragraph 22 of the order of the execution court dated 06.02.2021 reads thus;
"22. The learned counsel appearing for the JDs would say that they are still parishioners of the Church and are entitled to participate in the religious service and administration of assets O.P.(C)No.446 of 2021 & :-75-:C.R.P.No.81 of 2021
of the Church. The JDs have also produced 12 registers in support of their claim. The registers are of the period from 1949 onwards. It will go to show that the decree holders as well as the JDs and their predecessors were members of the Church. But it appears that after the split in 2002, only the members belongs to Orthodox faction are parishioners of this Church. The documents produced by the decree holders as directed by this court on 14.02.2020 will go to show that the present JDs have no membership in the Church nor they have applied for membership accepting the 1934 constitution. Membership in a Church is not a legal right. So it cannot be enforced through court. A person can get membership in a Church only as per the consent of the majority of the parishioners of the Church and as per 1934 Constitution. In this case there is not even a scrap of paper to show that the JDs or any of the members who went away from the Church in 2002 following the Patriarch have ever accepted 1934 Constitution or have applied for membership in the Church. In such circumstances, neither the JDs nor those who does not accept 1934 Constitution can participate in the religious service and administration of the Church." (underline supplied) 10.8. Before the execution court, relying on Ext.B11 letter dated 24.04.2020 addressed to the Vicar of the Church and Ext.B12 letter dated 28.04.2020 addressed to the Metropolitan, it was pointed out that the parishioners of the Church have requested the Vicar and the Metropolitan to conduct election. The judgment debtors have also pointed out the pendency of O.S.No.327 of 2020 (Ext.B13) filed before the Munsiff's Court, Ernakulam, for O.P.(C)No.446 of 2021 & :-76-:C.R.P.No.81 of 2021
conducting election. Per contra, the decree holders contended that, after the judgment in K.S. Varghese, they have conducted an election as per the 1934 Constitution, on 08.03.2020. In support of the said contention, they relied on Exts.A6 and A7 minutes. They have relied on Ext.A8 photographs, Ext.A9 document and Exts.A12 to A14 photographs to contend that the judgment debtors are still members of Jacobite faction. The execution court, in the impugned order, concluded that, as the judgment debtors are having no membership in the Church, they are not entitled to make a demand to conduct election. Exts.A6 and A7 minutes will go to show that there was an election by which the office bearers, trustees and managers were elected. The documents will go to show that the 2nd decree holder is the elected trustee and the 3rd decree holder is the Manager. The documents (photographs) will also go to show that the judgment debtors are not still accepting the 1934 Constitution, but they want to participate with the activities of the Church, which they are not legally entitled. Therefore, the execution court found that the decree holders are entitled for the reliefs sought for in the execution petition. Paragraphs 23 to 25 of the order of the execution court dated 06.02.2021 read thus;
"23. The learned counsel appearing for the JDs rely on Exts.B11 and B12 to show that on 24.04.2020 and O.P.(C)No.446 of 2021 & :-77-:C.R.P.No.81 of 2021
28.04.2020, the parishioners of the Church approached the vicar as well as the Metropolitan to conduct election to the Church. As earlier stated, as they are having no membership in the Church they are not entitled to make such a demand. It is submitted by the learned counsel that Ext.B13 is a suit filed by the JDs to conduct an election. The suit O.S.No.327 of 2020 is pending before the Munsiff's Court, Ernakulam. The suit has its own legal ends and has nothing to do with this case.
24. The decree holders would say that after the judgment in K.S.Varghese case they have conducted an election as per the 1934 Constitution on 8.03.2020. It is in support of this, they have produced Exts.A6 and A7 minutes and rely on the registers produced by them. It will go to show that there was an election by which officer bearers, trustees and managers were elected. It is true that there are only a few members following 1934 Constitution who participated in the election. It will not tell upon the election conducted on 08.03.2020 in view of clause 20 in paragraph 184 in K.S. Varghese case. The documents will go to show that the second decree holder is the elected trustee and the third decree holder the Manager. The learned counsel appearing for the JDs would say that the documents relied on by the decree holders are forged. It is in support of this he is relying on Exts.B15 and B16 First Information Reports. Ext.B15 relates to the election conducted in 2015 and Ext.B16 with respect to the present election. It is up to the police to investigate the case and proceed with the complaint if there is any truth in the allegation.
25. The learned counsel appearing for the decree holders rely on Exts.A8, A9, A12 to 14 to show that the JDs are still members of jacobite faction. It is submitted that they are having worship in the Church named St.Ignatius Orthodox O.P.(C)No.446 of 2021 & :-78-:C.R.P.No.81 of 2021
Syrian Church, Kanjiramattom. Along with the argument note the decree holders have also produced photographs which will show the JDs with their Metropolitan at their Church, and also having worship as per their faith. This will also go to show that the JDs are not still accepting the 1934 Constitution but they want to participate with the activities of the Church, which they are not legally entitled. In the light of the aforesaid discussions, it is found that the decree holders are entitled for the reliefs sought for in the execution petition. Only if there is disobedience to the direction issued by the court, coercive steps can be taken to execute the decree. The judgment debtors are directed to return the articles mentioned in 12(a) i to ix to the first decree holder vicar within 7 days from the date of this order falling which the decree holders are permitted to get the same with the assistance of the court and to realise the expense if any incurred. In view of the above findings, no separate orders are required in E.A.No.710 of 2020." (underline supplied) 10.9. Before the execution court, the judgment debtors pointed out Ext.B10 order of this Court dated 01.10.2020 in R.P.No.694 of 2020, whereby the judgment dated 05.08.2020 in W.P.(C)No.15943 of 2020 was recalled. The execution court held that the 5th judgment debtor can continue as the Manager only till a new Manager is elected, as per the 1934 Constitution. It is done and the 3rd decree holder is the present Manager, who is entitled to manage the school as per the bye-law of the Educational Agency.
Therefore, the execution court directed the District Educational O.P.(C)No.446 of 2021 & :-79-:C.R.P.No.81 of 2021
Officer, Ernakulam, to approve the change of management, based on the application made by the decree holders, and restrained the 5th judgment debtor from functioning as the Manager of the school.
Paragraph 26 of the order of the execution court dated 06.02.2021 reads thus;
"26. Para 176 in K.S. Varghese case will go to show that educational institutions of the Church have to be run in accordance with the provisions of Kerala Education Act. So, the school has to be run as per the Act. Ext.B14 is the bye law of the educational agency of the Church approved by the department. It will go to show that the institution is managed by a committee having 7 elected members under the chairmanship of the vicar. As earlier stated, the third decree holder is the duly elected manager. So he is entitled to manage the Church under the chairmanship of the vicar and the committee. It is seen that the term of the present manager, 5th JD has expired on 15.05.2020. So he is not entitled to hold the post. But the JDs rely on Ext.B10 order of the Hon'ble High Court recalling the order in W.P.(C)No.15943 of 2020 in the Review Petition No.694 of 2020 filed by the 5 th JD herein. The 5th JD can continue as the manager only till a new manager is elected to the Church as per the 1934 constitution. As earlier stated, it is done and the third decree holder is the present manager. The JDs also rely on Ext.B17 a mass petition submitted before the DEO alleging that no election or pothuyogam was conducted in the Church and 5 th JD has to continue as the manager. There is no grain of truth in the said representation. It is found that the third decree holder is entitled to manage the school as per the bye law of O.P.(C)No.446 of 2021 & :-80-:C.R.P.No.81 of 2021
educational agency of the Church. So allowing the prayer in E.A.No.780 of 2020, the 6 th respondent DEO, Ernakulam is directed to approve the change of management application submitted by the decree holders. The 5 th JD is restrained from functioning as the manager of St.Ignatius Vocational Higher Secondary School, Kanjiramattom forthwith. If the 5 th JD is not doing so, the decree holders are permitted to execute the decree with the assistance of the court. In view of the order in E.A.No.780 of 2020, the prayer for appointing a receiver as prayed in E.A.No.781 of 2020 is not allowed."
(underline supplied)
11. In O.P.(C)No.446 of 2021, the challenge made under Article 227 of the Constitution of India is against order dated 06.02.2021 of the execution court in E.A.No.780 of 2020 in E.P.No.565 of 2020 in O.S.No.163 of 1977. The decree holders in E.P.No.565 of 2020 filed the said application on 14.10.2020, seeking an order directing the 6 th respondent District Educational Officer, Ernakulam, to approve change of management of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, based on the application of the Educational Agency dated 14.07.2020 and a prohibitory injunction prohibiting the 5 th judgment debtor or his successors from functioning as the Manager of the school, in execution of the decree. By the impugned order, the execution court allowed E.A.No.780 of 2020 and the 6 th O.P.(C)No.446 of 2021 & :-81-:
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respondent District Educational Officer, Ernakulam, was directed to approve change of management of the school, based on the application made by the decree holders. The 5 th judgment debtor was restrained from functioning as the Manager of the school, forthwith. In case the 5th judgment debtor is not doing so, the decree holders are permitted to execute the decree with the assistance of the court.
11.1. The learned Senior Counsel for the petitioner contended that St.Ignatius Vocational Higher Secondary School, which is an aided educational institution, is governed by the provisions under the Kerala Education Act, 1959 and the Rules made thereunder. The appointment of the petitioner/5th judgment debtor as the Manager of that school and the approval granted by the Educational Authorities for such appointment are the subject matter of challenge in various writ petitions pending before this Court. The 3 rd decree holder in E.P.No.565 of 2020 filed W.P.(C)No.15943 of 2020 before this Court seeking time-bound consideration of the proposal dated 14.07.2020 for change of management of the school, by the District Educational Officer, Ernakulam. By the judgment dated 05.08.2020, this Court disposed of W.P.(C)No.15943 of 2020 directing time-bound consideration of that proposal by the District O.P.(C)No.446 of 2021 & :-82-:C.R.P.No.81 of 2021
Educational Officer, after hearing the parties involved in the matter.
However, that judgment was recalled by the order dated 01.10.2020 in R.P.No.694 of 2020 filed by the 5th judgment debtor.
The decree holders filed E.A.No.780 of 2020 before the execution court on 14.10.2020, immediately after the order of this Court in R.P.No.694 of 2020.
11.2. Per contra, the learned Senior Counsel for respondents 1 to 3 contended that, in view of the law laid down by the Apex Court in K.S. Varghese, the execution court is well within its powers in directing the 6th respondent District Educational Officer to approve change of management of the school, based on the proposal dated 14.07.2020 of the Educational Agency and issuing prohibitory injunction against the 5th judgment debtor. The pendency of various writ petitions before this Court, including W.P.(C)No.15943 of 2020 filed by the 3rd decree holder seeking time-bound consideration of the proposal dated 14.07.2020, is not a bar for the decree holders in approaching the execution court in E.P.No.565 of 2020 and E.A.No.780 of 2020 seeking reliefs in the management of the school. The learned Government Pleader submitted that the 6 th respondent District Educational Officer could not take a decision on the proposal dated 14.07.2020 of the Educational Agency seeking O.P.(C)No.446 of 2021 & :-83-:
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approval for change of management of the school, since by the time the 6th respondent issued notice pursuant to the direction contained in the judgment dated 05.08.2020 in W.P.(C)No.15943 of 2020, that judgment was recalled by this Court, by the order dated 01.10.2020 in R.P.No.694 of 2020.
11.3. Since the learned Senior Counsel on both sides and also the learned Government Pleader for the official respondent advanced arguments referring to the facts involved in W.P.(C) Nos.2719 of 2016, 15943 of 2020 and 17731 of 2020, I have perused the Judge's papers in those writ petitions. As discernible from the Judge's papers, the appointment of the 5th judgment debtor as the Manager of St.Ignatius Vocational Higher Secondary School, Kanjiramattom, with effect from 11.04.2010, was approved by the District Educational Officer, Ernakulam, vide order dated 18.09.2010. A rival claimant challenged the said order by filing appeal before the Director of Public Instruction, which ended in dismissal. The appellate order was under challenge in a revision petition filed before the Government, which also ended in dismissal by the order dated 30.04.2012. The rival claimant challenged that order before this Court by filing W.P.(C)No.15726 of 2012, which ended in dismissal by the judgment dated 10.04.2013. That O.P.(C)No.446 of 2021 & :-84-:C.R.P.No.81 of 2021
judgment was under challenge in W.A.No.1011 of 2013, which was disposed of by the judgment dated 17.03.2014, without interfering with the judgment of the learned Single Judge in any manner.
However, the Division Bench observed that, if the Church cannot find a Manager of its choice, in accordance with the approved scheme, it would be open to the statutory authorities to consider appropriate action, within the frame work of the Kerala Education Act and the Rules made thereunder, to ensure that the institution is properly managed through the statutory machinery.
11.4. After the judgment of the Division Bench in W.A.No.1011 of 2013, the District Educational Officer issued a notice dated 24.06.2014 directing the Church to elect a new Manager, in accordance with the approved scheme, within 15 days, failing which he would resort to appropriate means, within the frame work of the Kerala Education Rules. The 5 th judgment debtor challenged the said notice by filing W.P.(C)No.16457 of 2014, in which this Court granted an interim order on 27.06.2014, staying all further proceedings pursuant to that notice. The 5 th respondent, as a matter of abundant caution, moved the Apex Court against the judgment of the Division Bench in W.A.No.1011 of 2013. On 18.07.2014, while issuing notice in S.L.P.(C)No.16097 of 2014, the O.P.(C)No.446 of 2021 & :-85-:C.R.P.No.81 of 2021
Apex Court granted an interim stay of the impugned judgment and order passed by the High Court, till 20.08.2015. The 5 th judgment debtor was re-elected as the Manager of the school, on 17.05.2015, for a further term of 5 years, which was approved by the District Educational Officer, vide order dated 23.05.2015, with effect from 19.05.2015. On 27.08.2015, when S.L.P.(C)No.16097 of 2014 came up for consideration, the Apex Court disposed of the matter as having become infructuous, since nothing survived in that petition for consideration and decision.
11.5. The rival claimant challenged the order of the District Educational Officer dated 23.05.2015 approving the appointment of the 5th judgment debtor as the Manager of the school for a period of 5 years from 19.05.2015, before the Director of Public Instruction.
The appellate authority, by the order dated 04.01.2016, cancelled the appointment of the 5th judgment debtor, who challenged that order before this Court in W.P.(C)No.2719 of 2016. On 22.01.2016, this Court admitted that writ petition and granted interim stay of the said order dated 04.01.2016 (Ext.P16) for a period of one month. That interim order, which was extended from time to time, was extended until further orders on 11.07.2016. W.P.(C)No.2719 of 2016 is still pending consideration. The reliefs sought for in that O.P.(C)No.446 of 2021 & :-86-:
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writ petition read thus;
"(i) to issue a writ in the nature of certiorari or such other writ, direction or order calling for the records leading to Ext.P16 and to quash the same;
(ii) to issue a writ in the nature of mandamus or such other writ, direction or order commanding the respondents 1 and 2 not to interfere with the appointment and approval of the petitioner as the Manager of the Saint Ignatius Vocational Higher Secondary School as per Ext.P11 order;
(iii) to issue a writ of mandamus or such other writ, direction or order declaring that the petitioner was duly elected as the manager of the School and therefore entitled to continue in office for a term of 5 years from May, 2015."
11.6. On 04.08.2020, the 3rd decree holder in E.P.No.565 of 2020, who is arrayed as the 5th respondent in W.P.(C)No.2719 of 2016, filed W.P.(C)No.15943 of 2020 before this Court, seeking a writ of mandamus commanding the District Educational Officer, Ernakulam, to consider and dispose of the proposal dated 14.07.2020 for change of management of the school [Ext.P4 in W.P. (C)], within a time frame to be fixed by this Court. The document placed on record as Ext.P3 is a copy of the minutes of the Managing Committee of the school convened on 10.03.2020, in which the 3rd decree holder was elected as the Manager of the school. As per Ext.P3, election to the Managing Committee of the school was conducted in the General Body of the Edavaka held on 08.03.2020.
O.P.(C)No.446 of 2021 & :-87-:
C.R.P.No.81 of 2021By the judgment dated 05.08.2020 [Ext.P2 in O.P.(C)], this Court disposed of that writ petition, directing the District Educational Officer to consider and dispose of that application, within 60 days from the date of receipt of the judgment, after hearing the parties involved in the matter.
11.7. In compliance of the judgment in W.P.(C)No.15943 of 2020, the District Educational Officer sought for records from the 3rd decree holder, relating to the meeting of the Managing Committee held on 10.03.2020, who did not submit the original minutes. In the meanwhile, the 5th judgment debtor filed R.P.No.694 of 2020 seeking review of the judgment in W.P. (C)No.15943 of 2020. By the order dated 01.10.2020 in R.P.No.694 of 2020 [Ext.P5 in O.P.(C)] this Court recalled the judgment in W.P. (C)No.15943 of 2020 and posted that writ petition along with W.P. (C)No.16547 of 2014, 2719 of 2016 and 17731 of 2020.
11.8. On 24.08.2020, the 5th judgment debtor filed W.P. (C)No.17731 of 2020, seeking a writ of certiorari to quash a letter dated 12.08.2020 of the District Educational Officer, Ernakulam [Ext.P16 in that W.P.(C)], whereby the 3rd decree holder is required to produce certain documents, which are enumerated therein. The said communication is one issued in connection with the proposal O.P.(C)No.446 of 2021 & :-88-:
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dated 14.07.2020 for change of management [Ext.P4 in W.P. (C)No.15943 of 2020]. The reliefs sought for in W.P.(C)No.17731 of 2020 read thus;
"(i) to issue a writ in the nature of certiorari or such other writ, direction or order calling for the records leading to Ext.P16 and to quash the same;
(ii) to issue a writ of mandamus or such other writ, direction or order declaring that the general body meeting of the parishioners of the 2nd respondent Church stated to have been conducted on 08.03.2020 is illegal;
(iii) to issue a writ in the nature of mandamus or such other writ, direction or order commanding the 2nd respondent to consider the objections raised by the petitioner, the present trustees of the 2nd respondent Church and the parishioners against the proposal forwarded by the 4th respondent to approve the appointment of the 3 rd respondent as the Manager of the St.Ignatius Vocational Higher Secondary School, Kanjiramattom on merits, after affording an opportunity of being heard to them;
(iv) to issue a writ in the nature of mandamus or such other writ, direction or order commanding the 1st respondent to conduct an enquiry the authenticity of the records submitted by the 4th respondent along with the proposal to approve the appointment of the 3rd respondent as the Manager of St.Ignatius Vocational Higher Secondary School, Kanjiramattom."
11.9. On 25.08.2020, this Court admitted W.P.(C)No.17731 of 2020 and granted stay of operation of Ext.P16 and all further O.P.(C)No.446 of 2021 & :-89-:
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proceedings pursuant to it for a period of one month and the writ petition was ordered to be listed along with W.P.(C)No.2719 of 2016. The said interim order, which was extended till 05.10.2020, was extended further for a period of three weeks on 23.11.2020.
11.10. In the order in R.P.No.694 of 2020 this Court found that, taking note of the pendency of W.P.(C)Nos.16457 of 2014 and 2719 of 2016 between the same parties, in respect of substantially similar matter, the 1st respondent (3rd decree holder) ought to have specifically averred in W.P.(C)No.15943 of 2020, the pendency of W.P.(C)Nos.16457 of 2014 and 2719 of 2016 and impleaded the review petitioner (5th judgment debtor) as a party in that writ petition. If the same were done, this Court would not have passed the impugned judgment. In the order in R.P.No.694 of 2020 this Court noticed the interim orders granted in favour of the 5 th judgment debtor in W.P.(C)No.2719 of 2016 and W.P.(C)No.17731 of 2020.
11.11. The decree holders in E.P.No.565 of 2020 filed E.A.No.780 of 2020 before the execution court on 14.10.2020, after the order of this Court dated 01.10.2020 in R.P.No.694 of 2020, whereby this Court recalled the judgment dated 05.08.2020 in W.P. (C)No.15943 of 2020 filed by the 3 rd decree holder seeking time-
O.P.(C)No.446 of 2021 & :-90-:C.R.P.No.81 of 2021
bound consideration of the proposal dated 14.07.2020 of the Educational Agency for change of management of the school.
11.12. E.A.No.780 of 2020 filed by the decree holders in E.P.No.565 of 2020, seeking an order directing the District Educational Officer to approve change of management of the school, based on the proposal of the Educational Agency dated 14.07.2020, and a prohibitory injunction prohibiting the 5 th judgment debtor or his successors from functioning as the Manager of the school, pending execution of the decree, is supported by an affidavit dated 14.10.2020 sworn to by the 2nd decree holder on behalf of the 1st and 3rd decree holders also. In Para.3 of that affidavit it is stated as follows;
"The present Manager filed writ petition challenging the letter issued by the DEO in the matter of production of certain documents. Taking advantage of the above situation, the fifth respondent is taking speedy steps to effect appointment without any right or authority. The petitioners have filed I.A.No.709 of 2020 in which this Hon'ble Court was pleased to issue order injuncting the fifth respondent from making any appointments in the Vocational Higher Secondary School."
(underline supplied) In Para.7 of the affidavit filed in support of E.A.No.780 of 2020 it is stated as follows;
"The conduct of the District Educational Officer in keeping the O.P.(C)No.446 of 2021 & :-91-:C.R.P.No.81 of 2021
application for change of management pending is not justifiable. At present there is no adverse order issued by any court or any prohibitory order is not in [sic: is in] force. Even though writ petitions are pending, the reliefs sought for by the fifth respondent is [sic: have become] infructuous and will not affect the right of the petitioners to get consideration of the change of management application by the District Educational Officer." (underline supplied) The writ petition filed by 'the present Manager', referred to in Para.3 of the affidavit filed in support of E.A.No.780 of 2020, is W.P. (C)No.17731 of 2020 filed by the 5 th judgment debtor seeking a writ of certiorari to quash a letter dated 12.08.2020 of the District Educational Officer [Ext.P16 in that W.P.(C)], which is one issued in connection with the proposal of the Educational Agency dated 14.07.2020 for change of management of the school, whereby the 3rd decree holder is required to produce certain documents. As already noticed, on 25.08.2020, this Court granted interim stay of operation of Ext.P16 and all further proceedings pursuant to it, for a period of one month, and listed the matter along with W.P. (C)No.2719 of 2016. The said interim order, which was extended till 05.10.2020, was extended further for a period of three weeks, on 23.11.2020.
11.13. In the affidavit filed in support of E.A.No.780 of 2020 dated 14.10.2020, the decree holders have suppressed the interim O.P.(C)No.446 of 2021 & :-92-:
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order granted by this Court on 25.08.2020 in W.P.(C)No.17731 of 2020 and also the earlier interim order granted in W.P.(C)No.2719 of 2016. The pendency of W.P.(C)No.15943 of 2020 filed by the 3rd decree holder seeking time-bound consideration of the proposal dated 14.07.2020 for change of management of the school and also the order of this Court dated 01.10.2020 in R.P.No.694 of 2020 recalling the judgment in W.P.(C)No.15943 of 2020 are also not disclosed in the affidavit filed in support of E.A.No.780 of 2020. In the affidavit filed on behalf of the decree holders, material facts were suppressed from the notice of the execution court. In the said affidavit, it is averred that, the reliefs sought for in the writ petitions filed by the 5th respondent (5th judgment debtor) have become infructuous, which will not affect the right of the petitioners to get consideration of the application for change of management by the District Educational Officer.
11.14. As already noticed, the decree holders in E.P.No.565 of 2020 earlier moved E.A.No.709 of 2020, seeking an order of prohibitory injunction, prohibiting the 5th judgment debtor/his successors from effecting any sort of appointment in the school, pending execution of the decree. Though, on 01.10.2020, the execution court granted ad interim injunction as prayed for in O.P.(C)No.446 of 2021 & :-93-:C.R.P.No.81 of 2021
E.A.No.709 of 2020, till the disposal of the application, that order was vacated by a detailed order dated 23.10.2020. In Para.6 of the said order, the execution court held that, under Section 33 of the Kerala Education Act, civil courts have no jurisdiction to grant injunction, either temporary or interim, under the provisions of the Code of Civil Procedure.
11.15. In the order dated 23.10.2020 in E.A.No.709 of 2020, the execution court noticed the judgment of the Full Bench of this Court in A.M.S. Mannadiar v. State [ILR 1995 (2) Ker 541] that, in view of Section 33 of the Kerala Education Act, civil court has no jurisdiction to grant any temporary injunction or make any interim order restraining any proceeding, which is being or about to be taken under the said Act; which was followed in Damodaran v.
Vasudevan [1990 (2) KLJ 583], Kamalakshị Amma v. Kathiyani Amma [1999 (2) KLT 552] and Shalini K v. Ramanand R. [2019 (1) KLJ 936]. Therefore, the Kerala Education Act itself provides remedy for an aggrieved party.
11.16. In the aforesaid order, the execution court concluded that, in view of the statutory prohibition, the court is having no jurisdiction to grant any temporary or prohibitory order, as prayed for in E.A.No.709 of 2020, against the respondents. In that order O.P.(C)No.446 of 2021 & :-94-:
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the execution court noticed the pendency of O.S.No.17 of 2016 filed by the rival faction for removing the 5 th judgment debtor, the elected Manager, who is in administration of the school; the law laid down by the Apex Court in K.S. Varghese that the school has to be governed as per the provisions under the Kerala Education Act and rules made thereunder; and also the pendency of three writ petitions before this Court. The execution court found that the decree holders have obtained ad interim injunction suppressing all these facts, and by distorting the facts.
11.17. In K.S. Varghese, the specific argument of the learned counsel for the respondents in C.A.Nos.3674, 3681 and 3683 of 2015 [[email protected]] was that, educational institutions are governed by the bye-laws, which are statutorily made and approved under the provisions of the Kerala Education Act, 1959 and the Rules. Thus Udampady of 1913 does not govern educational institutions. The assets of the parish Churches are to be governed by the 1934 Constitution and that of educational institutions as per the 1959 Act and not by Udampady of 1913. In Para.216 of the judgment, the Apex Court held that, the learned counsel for the respondents in CA Nos.3674, 3681 & 3683 of 2015 was right in submitting that educational institutions have to be run in O.P.(C)No.446 of 2021 & :-95-:C.R.P.No.81 of 2021
accordance with the provisions of the Kerala Education Act, 1959.
Educational institutions cannot be governed by the Udampady of 1913, as per Sections 6 and 7 of the Kerala Education Act.
11.18. Before the execution court the 5 th judgment debtor filed counter affidavit in E.A.No.780 of 2020, pointing out that, with substantially same averments, the decree holders filed E.A.No.709 of 2020, which has already been dismissed by the order dated 23.10.2020. Therefore, E.A.No.780 of 2020 is also liable to be dismissed for the very same reason. In the counter affidavit filed by the 6th respondent District Educational Officer, it is stated that, in compliance of the directions contained in the judgment of this Court dated 05.08.2020 in W.P.(C)No.15943 of 2020, records relating to the meeting of the Managing Committee held on 10.03.2020 were called for. However, by the order dated 01.10.2020 in R.P.No.694 of 2020 filed by the 5 th judgment debtor, this Court recalled the said judgment in W.P.(C)No.15943 of 2020 and that writ petition is listed for hearing along with connected matters. The 5 th judgment debtor filed W.P.(C)No.17731 of 2020 against approving the 3 rd decree holder as Manager of the school. In that writ petition this Court granted interim stay of operation of Ext.P16 and further proceedings pursuant thereto. In such circumstances, the District O.P.(C)No.446 of 2021 & :-96-:C.R.P.No.81 of 2021
Educational Officer is not in a position to take a decision in the matter of approval of appointment of the 3 rd decree holder as the Manager of the school.
11.19. In W.P.(C)No.17731 of 2020 filed by the 5 th judgment debtor, this Court granted interim order on 25.08.2020, staying the operation of Ext.P16 and all further proceedings pursuant to it, for a period of one month. The said interim order, which was extended till 05.10.2020, was extended further for a period of three weeks, on 23.11.2020. Thereafter the interim order was never extended.
However, on 01.10.2020, this Court allowed R.P.No.694 of 2020 filed by the 5th judgment debtor, by recalling the judgment dated 05.08.2020 in W.P.(C)No.15943 of 2020 filed by the 3 rd decree holder, whereby the District Educational Officer was directed to consider and dispose of the proposal dated 14.07.2020 for change of management of the school, within 60 days from the date of receipt of the judgment, after hearing the parties involved in the matter. After the order of this Court in R.P.No.694 of 2020, the decree holders filed E.A.No.780 of 2020 before the execution court on 14.10.2020. That execution application was filed during the pendency of W.P.(C)No.15943 of 2020 filed by the 3 rd judgment debtor seeking a writ of mandamus for time-bound consideration of O.P.(C)No.446 of 2021 & :-97-:
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the very same proposal by the District Educational Officer.
11.20. The learned Government Pleader, during the course of further arguments held on 30.06.2021, brought to the notice of this Court that Fr.Mathew Pulimoottil, the Cor-Episcopa; the Managing Committee of St.Ignatius Vocational Higher Secondary School represented by its Chairman; and St.Ignatius Orthodox Syrian Church represented by its Vicar Fr.A.J.Abraham (who is the 1 st decree holder in E.P.No.565 of 2020) filed W.P.(C)No.704 of 2021 before this Court, on 08.01.2021, seeking a writ of certiorari to quash the order dated 18.11.2020 of the District Educational Officer, Ernakulam, whereby the proposal made by the Educational Agency dated 14.07.2020 seeking approval for change of management of the school was returned, for re-submission, as directed in that communication. The further relief sought for is a writ of mandamus commanding the District Educational Officer to take back the proposal made by the Educational Agency dated 14.07.2020 and to dispose of the same in accordance with law, after affording an opportunity of being heard.
11.21. From the Judge's papers in W.P.(C)No.704 of 2021 it is seen that the affidavit filed in support of that writ petition is one sworn to by the 1st decree holder. Though W.P.(C)No.704 of 2021 is O.P.(C)No.446 of 2021 & :-98-:C.R.P.No.81 of 2021
one filed on 08.01.2021, the pendency of that writ petition was never brought to the notice of the execution court, by the 1 st decree holder. The learned counsel for the 5th judgment debtor submitted that, though the 5th judgment debtor is made a party to W.P. (C)No.704 of 2021, he is yet to receive the notice issued by this this Court, in that writ petition.
11.22. In E.A.No.780 of 2020 the decree holders have also sought for a prohibitory injunction prohibiting the 5th judgment debtor or his successors from functioning as the Manager of the school, pending execution of the decree. The relief sought for in the earlier application, i.e., E.A.No.709 of 2020 was an order of prohibitory injunction prohibiting the 5 th judgment debtor and his successors from effecting any sort of appointment in the school, pending execution of the decree. The ad interim injunction granted on 01.10.2020 in E.A.No.709 of 2020 has already been vacated by the execution court by a detailed order dated 23.10.2020 [Ext.P9 in O.P.(C)], for the reasons stated therein.
11.23. In Sukumaran K.A. v. Kerala Permanent Benefit Fund Limited [2011 (2) KHC 955] this Court held that, res judicata applies not only to suits but also to execution proceedings as well. Explanation VII to Section 11 of the Code of Civil O.P.(C)No.446 of 2021 & :-99-:
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Procedure, 1908 provides that the provisions of the Section shall apply to a proceeding for the execution of a decree. Therefore, a matter which was heard and finally decided in the execution proceedings would bind the parties in another execution petition or at a later stage of the same execution proceedings. That the principle of res judicata would apply to different stages of the same proceedings is well settled. [See: Satyadhyan Ghosal v. Deorajin Debi - AIR 1960 SC 941; Prahlad Singh v. Col. Sukhdev Singh
- AIR 1987 SC 1145; Jayalakshmi v. Shanmugham - 1987 (2) KLT SN 67 : AIR 1988 Ker. 128].
11.24. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the O.P.(C)No.446 of 2021 & :-100-:C.R.P.No.81 of 2021
High Court.
11.25. In Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.
11.26. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the Court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it O.P.(C)No.446 of 2021 & :-101-:C.R.P.No.81 of 2021
or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.
11.27. In the instant case, the execution court committed a grave error in entertaining E.A.No.780 of 2020, after the order dated 23.10.2020 [Ext.P9 in O.P.(C)], whereby the ad interim injunction granted on 01.10.2020, in E.A.No.709 of 2020 was vacated, for the reasons stated therein. The decree holders have not chosen to challenge that order in appropriate proceedings. On 01.10.2020, this Court allowed R.P.No.694 of 2020 filed by the 5 th judgment debtor, by recalling the judgment dated 05.08.2020 in W.P.(C)No.15943 of 2020 filed by the 3 rd decree holder, whereby the District Educational Officer was directed to consider and dispose of the proposal dated 14.07.2020 for change of management of the school. The decree holders filed E.A.No.780 of 2020 before the execution court on 14.10.2020, after the order of this Court in R.P.No.694 of 2020, i.e., during the pendency of W.P.(C)No.15943 of 2020 filed by the 3 rd decree holder seeking a writ of mandamus for time-bound consideration of the very same proposal by the District Educational Officer. Moreover, the pendency of W.P. (C)No.704 of 2021 filed by the 1 st decree holder and two others on 08.01.2021, seeking a writ of certiorari to quash the order dated O.P.(C)No.446 of 2021 & :-102-:C.R.P.No.81 of 2021
18.11.2020 of the District Educational Officer and also a writ of mandamus commanding the District Educational Officer to take back the proposal made by the Educational Agency dated 14.07.2020 and to dispose of the same in accordance with law, was never brought to the notice of the execution court. The reasoning of the execution court in the impugned order, for entertaining E.A.No.780 of 2020, during the pendency of W.P.(C)No.15943 of 2020, is perverse and patently illegal, which warrants interference of this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.
11.28. In the result, O.P.(C)No.446 of 2021 is disposed of by setting aside the impugned order of the execution court dated 06.02.2021 in E.A.No.780 of 2020 in E.P.No.565 of 2020 in O.S.No.163 of 1977 and that application is dismissed; however, without prejudice to the right of the 3 rd decree holder to prosecute W.P.(C)No.15943 of 2020 and the right of the 1st decree holder to prosecute W.P.(C)No.704 of 2021 pending before this Court. No order as to cost.
12. In C.R.P.No.81 of 2021 filed under Section 115 of the Code of Civil Procedure, 1908, the challenge is against the common order dated 06.02.2021 of the execution court in E.P.No.565 of O.P.(C)No.446 of 2021 & :-103-:
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2020 in O.S.No.163 of 1977. In this Civil Revision Petition, the petitioners seek an order to set aside the said common order and to dismiss E.P.No.565 of 2020 in O.S.No.163 of 1977 as not maintainable.
12.1. As already noticed, O.S.No.163 of 1977 was one filed seeking a declaration that the 1 st defendant Church shall be administered in all matters of religious worship and administration of assets under the 1934 Constitution. The plaintiffs have also sought for a consequential injunction. The trial court dismissed the suit for want of sanction under Section 92 of the Code of Civil Procedure, 1908. In R.F.A.No.427 of 2003, though the defendants urged a contention that St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattom is not a constituent of the Malankara Church, but an independent Church established by the members of the Parish, without affirming allegiance to the 1934 Constitution, it was conceded before this Court by the learned Senior Counsel, as instructed by the learned counsel for the defendants, that the said contention is not being pressed and therefore, the defendants admit that the 1934 Constitution is applicable.
12.2. Taking note of the above stand taken by the defendants and also the law laid down by the Apex Court in P.M.A. O.P.(C)No.446 of 2021 & :-104-:C.R.P.No.81 of 2021
Metropolitan [AIR 1995 SC 2001] and K.S. Varghese [(2017) 15 SCC 333], this Court held that, merely because O.S.No.163 of 1977 has been dismissed by the trial court finding it to be bad for want of leave, the defendants cannot claim control or management of the Church, contrary to the declarations in the aforesaid judgments; and therefore, the suit deserves to be decreed to that extent. By the judgment dated 11.02.2020 in R.F.A.No.427 of 2003, this Court set aside the impugned judgment and decree of the trial court and consequently, decreed O.S.No.163 of 1977, declaring that the 1st defendant Church, namely, St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattom, shall be administered in all matters of religious worship and administration of assets as per the 1934 Constitution. The decree in O.S.No.163 of 1977, which is marked as Ext.A1 in E.P.No.565 of 2020, reads thus:
"This Regular First Appeal coming on 11.02.2020 for hearing, upon perusing the grounds of the appeal, the judgment of the lower court and the material papers in the case and upon hearing the arguments of Sri.K.N.Chandrababu, Advocate for the 1st appellant, Sri.S.Sreekumar, Senior Advocate for the 2 nd appellant and additional appellant 3 and M/s.P.Martin Jose, Sri.Prijith, Thomas P.Kuruvila, Advocates for the additional appellant 3, Sri.K.J.Kuriachan, Advocate for respondents 1 to 10, 13 and 14 and M/s.N.Sukumaran and S.Shyam, Advocate for the 7th respondent, Sri.P.Viswanathan, Senior Advocate O.P.(C)No.446 of 2021 & :-105-:C.R.P.No.81 of 2021
along with Sri.P.George Varghese, Sri.Sunil N.Shenoy, Sri.Deepak.B, Sri.Vinod K.V, Advocates for the 11 th respondent, Sri.P.R.Venkatesh, Advocate for the 14 th respondent, Sri.K.C.Eldho, Advocate for the 15 th respondent and Sri.Saji Varghese, Kakkattu Mattathil, Advocate for respondents 16 and 17, this Court conspectusly of the view that the suit has been dismissed by the Trial Court finding it to be bad for want of leave, the defendants cannot claim control or management of the church, contrary to the declarations in the aforejudgments, both order and decree;
(1) That the impugned judgment and decree be and are hereby set aside;
(2) The Suit is hereby decreed to the extent, declaring that the first defendant church/1st respondent herein namely, St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattom be administered in all matters of religious worship and administration of assets as per the 1934 Constitution; and (3) That, this Regular First Appeal be and is hereby allowed." (underline supplied) 12.3. On 30.09.2020, the decree holders filed E.P.No.565 of 2020 before the First Additional District Court, Ernakulam, to execute the decree in O.S.No.163 of 1977, in terms of the judgment of this Court dated 11.02.2020 in R.F.A.No.427 of 2003.
In column No.9 of the execution petition it is stated that as per the decree, it is declared that the 1 st defendant Church/St.Ignatius Orthodox Syrian Church, Kanjiramattom, be administered in all O.P.(C)No.446 of 2021 & :-106-:
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matters of religious worship and administration of assets as per the 1934 Constitution by allowing the Regular First Appeal R.F.A.No.427 of 2003 of the High Court of Kerala dated 11.02.2020. Column No.12 of the execution petition, which deals with the mode in which the assistance of the court is required, reads thus;
"12. The mode in which the assistance of the court is required;
(a) Issue warrant against the judgment debtors and to direct them to handover the i. Key of the Church;
ii. Key of the office room (parsonage);
iii. Key of the Parish Hall;
iv. Key of the offertory boxes installed in five places;
v. Documents of landed properties of the Church;
vi. Registers such as Marriage Register, Baptism
Register, funeral register, etc.;
vii. Several articles such as gold plated cross, silver
plated cross, wooden cross and other items being used in the Church;
viii. The ambulance vehicle No.KL-39/G-9734 belonging to the Church;
ix. Key/all keys of St.Ignatius Vocational and Higher Secondary School building.
(b) issue order of attachment of the properties of judgment debtors' ensuring the execution of the decree.
(c) issue such other reliefs that are deemed fit and proper in the course of the proceeding of execution being conducted by this Hon'ble Court."
12.4. As already noticed hereinbefore, in K.S. Varghese the O.P.(C)No.446 of 2021 & :-107-:
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Apex Court held that, once there is a Malankara Church it has to remain as such. No group or denomination can take away the Church and form another group for its management as that would virtually tantamount to usurping its properties and the Church itself. When the Church has been created and is for the benefit of beneficiaries, it is not open for beneficiaries even by majority to usurp its property or management. The properties would always remain to be Malankara Church properties. Only office-holders have to subscribe to the 1934 Constitution as held by the Court. The Parishioners can take no Church property away, neither Catholicos faction by majority. It has to remain in Malankara Church. Neither the Church nor the Cemetery can be confiscated by anybody. It has to remain with Parishioners as per the customary rights and nobody can be deprived of right one enjoys being a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in Malankara Church. The Malankara Church, its properties and other matters are to be governed by the 1934 Constitution. While individual Parishioners may choose to leave the Church, there is no question of even a majority of the Parishioners in the Parish Assembly by themselves being able to take the movable or immovable properties out of the ambit of the O.P.(C)No.446 of 2021 & :-108-:C.R.P.No.81 of 2021
1934 Constitution, without the approval of the Church hierarchy. In existing system of Malankara Church, a Parish Church, which is a part of Malankara Church, cannot be usurped even by majority in Church under the guise of formation of new Church. The existing majority at a given time in any Parish Church cannot be permitted to take away the assets of the Church at the expense of those who adhere to the original Trust.
12.5. In K.S. Varghese the Apex Court noticed that the 1995 judgment settled such disputes, between the parties, in which the Court tried its best to take care of the prevailing situation while passing the decree. Faith is tried to be unnecessarily divided vis-a-
vis the office of Catholicos and the Patriarch. Faith of Church is in the Jesus Christ. It would not be open to any faction or group to adopt any particular system of management of Churches and to have a parallel system of managing authorities under the guise of spiritual supremacy. Under the garb of spiritual supremacy which had reached a vanishing point due to the establishment of Catholicos and Kalpana, and the 1934 Constitution which has been accepted and is binding, a parallel system of governance of Churches would not be in the interest of the Church and would destroy it. For reasons best known to the parties, fight is going on O.P.(C)No.446 of 2021 & :-109-:
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regarding the management which is wholly uncalled for. If Church has to survive, obviously this must stop and let the blessings of the Christ fall upon the believers, actual followers of his teaching. This is the only way by which we can expect that peace will come to the Church.
12.6. In Mathews Mar Koorilos [(2018) 9 SCC 672] a Three-Judge Bench of the Apex Court reiterated that, as per the consistent view taken in Thukalan Paulo Avira, Most Rev. P.M.A. Metropolitan and K.S. Varghese, 1934 Constitution is valid and binding upon the Parishioners. The Parish Church has to be managed as per the powers conferred under the 1934 Constitution. It is not open to any individual Church to have a parallel system of management under the guise of spiritual supremacy in the Patriarch. As held in K.S. Varghese, full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests), etc. and thereby cannot create a parallel system of administration.
12.7. In Mathews Mar Koorilos the Three-Judge Bench held that, the conclusions in Para.228 of K.S. Varghese are well in O.P.(C)No.446 of 2021 & :-110-:C.R.P.No.81 of 2021
consonance with Thukalan Paulo Avira and Most Rev. P.M.A. Metropolitan judgments. The detailed discussions and conclusions arrived at in K.S. Varghese settled the disputes between the appellant Patriarch and the respondent Malankara. As per the consistent view taken in Thukalan Paulo Avira, Most Rev. P.M.A. Metropolitan and K.S. Varghese, 1934 Constitution is valid and binding upon the Parishioners. The Parish Church has to be managed as per the powers conferred under the 1934 Constitution. It is not open to any individual Church to have a parallel system of management in the Churches under the guise of spiritual supremacy in the Patriarch. As held in K.S. Varghese, full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests), etc. and thereby cannot create a parallel system of administration.
12.8. In view of the law laid down in K.S.Varghese and reiterated in Mathews Mar Koorilos, once there is a Malankara Church it has to remain as such. No group or denomination can take away the Church and form another group for its management.
As the Church is for the benefit of beneficiaries, it is not open for O.P.(C)No.446 of 2021 & :-111-:
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the beneficiaries even by majority to usurp its property or management. Neither the Church nor the cemetery can be confiscated by anybody. It has to remain with Parishioners as per the customary right and nobody can be deprived of right on enjoys being a Parishioner in the Church or to be buried honourably in the cemetery in case he continues to have faith in Malankara Church. While individual Parishioners may choose to leave the Church, there is no question of even a majority of the Parishioners in the Parish Assembly by themselves being able to take the movable or immovable properties out of the 1934 Constitution, without the approval of the Church hierarchy. It would not be open to any faction or group to adopt any particular system of management of Churches and to have a parallel system of managing authorities under the guise of spiritual supremacy.
12.9. On 08.03.2021, when this civil revision petition came up for consideration along with the connected matter, during the course of arguments, on a specific query made by this Court, the learned Senior Counsel for respondents 1 to 3 submitted that, the 1st respondent in both these cases, who is the Vicar of St.Ignatius Orthodox Syrian Church, is the one appointed in terms of the 1934 Constitution, who is conducting services, and that no parallel O.P.(C)No.446 of 2021 & :-112-:C.R.P.No.81 of 2021
services are being conducted in the Church. The said submission made by the learned Senior Counsel was recorded.
12.10. The learned Senior Counsel for the petitioners contended that, as the decree in O.S.No.163 of 1977, in terms of the judgment of this Court in R.F.A.No.427 of 2003, is declaratory in nature, without any consequential mandatory or prohibitory injunction, the same is not an executable decree. Even in the case of a declaratory decree with consequential mandatory or prohibitory injunction, for invoking the provisions under Order XXI Rule 32 of the Code of Civil Procedure, the decree holder has to state in the execution petition as to how such a decree has been violated by the judgment debtors. As contended in the objection filed in E.P.No.565 of 2020, there is no allegation in the execution petition that the judgment debtors have violated the decree. There is no injunction, either mandatory or prohibitory, in terms of the judgment in R.F.A.No.427 of 2003 and as such, no arrest warrant can be issued.
12.11. Per contra, the learned Senior Counsel for respondents 1 to 3, after referring to Para.228.20 of the judgment of the Apex Court in K.S. Varghese contended that, since the 1934 Constitution is enforceable, the declaratory relief granted in O.S.No.163 of 1977 that St.Ignatius Orthodox Syrian Church shall O.P.(C)No.446 of 2021 & :-113-:C.R.P.No.81 of 2021
be administered in all matters of religious worship and administration of assets as per the 1934 constitution is enforceable. It is not the statutory requirement that the decree holder has to state in the execution petition as to how the decree has been violated by the judgment debtors. The affidavits filed in support of the execution applications filed in E.P.No.565 of 2020 contains necessary allegations as to violation of the decree by the judgment debtors. In view of the law laid down by the Apex Court in Fr. Issac Mattammel Cor-Episcopa [(2019) 10 SCC 606] it is the constitutional duty of all concerned to obey the judgment and order of the Apex Court in K.S. Varghese. The Apex Court restrained all the civil courts and the High Court not to pass any order in violation of the mandate of the decision in K.S. Varghese.
12.12. In Raman Nambissan v. Damodaran Nambissan [1995 (1) KLJ 566], a decision relied on by the learned Senior Counsel for the petitioners, this Court was dealing with a case in which the revision petitioner was the decree holder, who filed execution petition for the enforcement of mandatory decree in O.S.No.126 of 1976. He also sought enforcement of the prohibitory injunction against the respondents in terms of the decree. The executing court dismissed the execution petition holding that O.P.(C)No.446 of 2021 & :-114-:C.R.P.No.81 of 2021
enforcement of mandatory injunction cannot be granted as it is barred by limitation. Further, the revision petitioner has no grievance or case that the prohibitory injunction granted in his favour was ever disobeyed or violated by the respondents. Hence he cannot seek the enforcement of the decree of prohibitory injunction. Before this Court, the contention of the revision petitioner was that, even if the enforcement of mandatory injunction as per the decree is barred by limitation, the prayer for enforcement of the decree for prohibitory injunction should have been allowed by the executing court. This Court noticed that, Order XXI, Rule 32 of the Code is concerned with decree for specific performance for restitution of conjugal rights or for injunction. Rule 32 provides that where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal lights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for injunction by his detention in the civil prison, or by the attachment of his property, or by both. When a decree is sought to be enforced under Order O.P.(C)No.446 of 2021 & :-115-:C.R.P.No.81 of 2021
XXI, Rule 32, there must be specific averments in the execution petition that the party against whom the decree for injunction has been granted despite opportunity of obeying the decree has wilfully failed to obey it and hence execution of the decree has become necessary. When execution petition is filed it is elementary to state that the respondents against whom decree for injunction was passed wilfully disobeyed it despite opportunity of obeying it. In other words, wilful disobedience of the decree by the respondents should have been highlighted in the petition.
12.13. In Raman Nambissan, on the facts of the case, this Court noticed that, as there is no specific averment as contemplated under Order XXI, Rule 32 of the Code in the petition, revision petitioner cannot successfully proceed with the matter in execution. As the alleged violation of the decree has not been specifically pleaded in the execution petition, the executing court was justified in holding that sufficient averments are not there for enforcement of the decree for prohibitory injunction. When the statute mandates specific details to be mentioned by the decree holder, he has to state it in express terms and cannot build up a case by implication on indefinite and vague averments. Therefore, this Court dismissed the Civil Revision Petition as devoid of merits.
O.P.(C)No.446 of 2021 & :-116-:C.R.P.No.81 of 2021
This Court had made it clear that it will be open to the revision petitioner to file fresh execution petition with necessary pleadings.
12.14. In Padmakshi Amma v. Hashim [1999 (1) KLT 96], another decision relied on by the learned Senior Counsel for the petitioners, this Court was dealing with a case in which the revision petitioners/ defendants are the legal heirs of Raman, who was the original tenant of a building in which a hotel is being conducted. The landlord filed suit for an injunction restraining the revision petitioners from making any alteration, addition or modification to the plaint schedule building. The suit was filed on the premise that the tenants have effected certain alteration in the building. The suit was decreed restraining the tenants from making any alteration, addition, modification and from causing any damage and waste to the plaint schedule building. Subsequently the landlord filed E.P.No.67 of 1998, praying for arrest and detention of the judgment debtors in civil prison, for attachment of both movable and immovable properties and to stop all the work carried on in the decree schedule properties. In the execution petition it was averred as follows;
11. The mode in which The judgment debtors have the assistance of wilfully disobeyed the decree the court is required and they are carrying on O.P.(C)No.446 of 2021 & :-117-:C.R.P.No.81 of 2021
alteration work and modification work, committing damage and waste in violation of the decree.
It is therefore, prayed that this Hon'ble Court may be pleased to:
a Issue notice to the judgment debtors why they should not be detained in Civil Prison.
b The judgment debtors may be arrested and detained in Civil Prison for enforcement of the decree.
c by attachment of both movable and immovable properties of the judgment debtors d to stop all the work carried on in the decree schedule property rendering police help to the de-
cree holder e and to allow such other appropriate reliefs the decree holder may pray for in enforcing the decree which the Court may deem fit to grant for executing the decree.
After getting the notice, the respondents contended that the execution petition is not maintainable as execution petition does not disclose the basis on which the violation is committed. This objection was taken as a preliminary ground. The court below O.P.(C)No.446 of 2021 & :-118-:C.R.P.No.81 of 2021
considered the same; but dismissed it. The court below took the view that the averment in the execution petition in Para.11 is enough. In the above view of the matter, the court below held that the petition was maintainable. The said order was under challenge in a Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, 1908. After considering the rival contentions, this Court held that, the remedy provided under Order XXI, Rule 32 of the Code with regard to injunction is to take action against the judgment debtors for violation of injunction. The injunction consists of both mandatory and prohibitory. For this purpose, the decree holder has to show in the execution petition as to how the injunction has been violated. The averments should show the acts made in violation of decree and when was it done. Even if such an averment is not contained in the execution petition, at least the decree holder should have filed an affidavit regarding the nature of the violation made. On the facts of the case, this Court observed that, the object of the decree holder, as it appears, was to find out whether there is any violation by filing the execution petition and by sending a Commissioner to find out if there is any violation. The execution petition cannot be made use of collecting evidence on behalf of the decree holder. In that view of the matter, the O.P.(C)No.446 of 2021 & :-119-:C.R.P.No.81 of 2021
execution petition is not maintainable, since it has not given the details of the violation. However, this will not prevent the decree holder from filing a fresh execution petition with necessary ingredients.
12.15. In Chellamma and others v. Santhimadam, Sivakshetram, Venjaramoodu and others [2009 (4) KHC 985], another decision relied on by the learned Senior Counsel for the petitioners, this Court was dealing with a case in which the challenge made in the Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, arises out of a proceedings under Order XXI, Rule 32. The suit was decreed granting a perpetual prohibitory injunction restraining the defendants from interfering with the right of the 2nd plaintiff in managing the affairs of the plaint schedule property and the 1st plaintiff temple. The decree holders initiated proceedings against the judgment debtors by filing execution petition under Order XXI, Rule Rule 32 of the Code. The judgment debtors resisted the application contending that a new Executive Committee had been elected by the family members for administration of the temple, and in fact, that Committee was prevented by the 2nd decree holder from effectively managing the temple. The executing court came to the conclusion that the O.P.(C)No.446 of 2021 & :-120-:C.R.P.No.81 of 2021
judgment debtors had violated the decree of injunction, and on such finding, all the judgment debtors were directed to be detained in civil prison for a period of one month each. The court further directed the office bearers of the present temple committee to handover the key of the temple and the hundi and surrender the possession of the plaint schedule property to the 2 nd decree holder, who was also allowed to realise the costs of the proceedings from the judgment debtors. Propriety and correctness of the order so passed by the learned executing court was under challenge in the revision.
12.16. In Chellamma this Court noticed that, in the impugned order, no attempt was made by the executing court to examine the scope of the decree granted in the suit in favour of the decree holders and how far the proceeding under Order XXI, Rule 32 of the Code would lie against the judgment debtors on the imputations levelled as to their disobedience or violation of the decree of injunction. The judgment debtors disputed the imputations against them as to violation of the decree contending that a new committee had been formed by the family members after the passing of the decree and it is in management of the temple. The learned executing court without examining the merit of O.P.(C)No.446 of 2021 & :-121-:C.R.P.No.81 of 2021
that contention with reference to the decree of injunction passed in the suit in favour of the 2nd plaintiff accepted the case canvassed by him that he alone is entitled to administer the affairs of the temple and any interference with his right to do so by the judgment debtors who are admittedly family members having interest over the temple amounted to flouting of the decree of injunction passed in the suit. Though the 2 nd decree holder, on the death of the 1 st defendant during the pendency of the suit, became the senior most member of the family and, thus, entitled to have the right to administer the temple as per the terms of the settlement deed, that was never a question adjudicated upon in the suit as the claim for decree of injunction was canvassed by him as the Secretary of the committee elected by the family members to manage the temple.
When a committee had been formed to administer the temple by the family members, whatever be the terms provided under the settlement for its administration, with none of the family members having objection to the formation of such committee, that is a material circumstance which has to be appreciated and taken due note of by the executing court in ascertaining the scope of the decree of injunction granted in the suit. Unfortunately, the executing court proceeded with the enquiry even raising points for O.P.(C)No.446 of 2021 & :-122-:C.R.P.No.81 of 2021
determination as if the judgment debtors are accused persons liable to be tried and punished for disobedience of the decree of injunction. Without even examining the question and entering a definite finding how the 3rd respondent, a serving Soldier, had disobeyed the decree and in what manner he had violated the injunction by his wilful disobedience, the executing court has ordered for his detention also in the civil prison for one month. The execution petition filed by the 2nd decree holder does not spell out the date or particulars as to how the decree of injunction was violated by the judgment debtors, nor of specific acts committed by the judgment debtors in wilfully disobeying the decree of injunction.
This Court held that, specific averments as to how the decree was violated by the judgment debtors and proof as to their wilful disobedience of the decree of injunction are essential to hold that they or any of them are condemners, to punish them under Order XXI, Rule 32 of the Code. Therefore, this Court set aside the impugned order and the executing court was directed to examine the matter afresh, taking note of the above observations, and dispose of the proceedings initiated by the decree holders under Order XXI, Rule 32 of the Code, in accordance with law.
12.17. In the instant case, there is absolutely no allegation in O.P.(C)No.446 of 2021 & :-123-:C.R.P.No.81 of 2021
E.P.No.565 of 2020 that the judgment debtors have violated the decree in O.S.No.163 of 1977, in terms of the judgment of this Court in R.F.A.No.427 of 2003. In the execution petition, the decree holders have no case that the judgment debtors have taken any movables of the Church out of the ambit of the 1934 Constitution. As already noticed hereinbefore, on 08.03.2021, this Court recorded the submission made by the learned Senior Counsel for respondents 1 to 3 that the 1st respondent in both the cases, who is the Vicar of St.Ignatius Orthodox Syrian Church, is the one appointed in terms of the 1934 Constitution, who is conducting services, and that no parallel services are being conducted in the Church.
12.18. In E.P.No.565 of 2020, the decree holders have no case that the judgment debtors are disentitled from participating in the religious services and administration of the Church. In the impugned order the execution court noticed that, the 12 registers produced by the judgment debtors in support of their claim, which are of the period from the year 1949 onwards, would go to show that the decree holders as well as the judgment debtors and their predecessors were members of the Church. However, the execution court, even in the absence of a proper pleadings, arrived at a O.P.(C)No.446 of 2021 & :-124-:C.R.P.No.81 of 2021
conclusion that, after the split in the year 2002 only the members who belong to Orthodox faction are the Parishioners of the Church.
Neither the judgment debtors nor those who did not accept the 1934 Constitution can participate in the religious services and administration of the Church. The learned Senior Counsel for respondents 1 to 3 contended that the above findings of the execution court, which are supported by the documents placed on record, cannot be said to be either arbitrary or illegal.
12.19. The learned Senior Counsel for respondents 1 to 3 relied on the decision of this Court in Joy P.M. and another v.
P.V. Johny and others [2020 (2) KHC 466] in order to contend that the Vicar is entitled as per the 1934 Constitution to conduct elections and as such, after the declaration of law by the Apex Court in K.S. Varghese, the judgment debtors cannot raise a valid challenge against the validity of the Edavaka Yogam conducted on 08.03.2020.
12.20. In Joy P.M. this Court was dealing with two appeals arising out of the judgment and decree of the District Court, Ernakulam in O.S.No.42 of 2003. The plaintiffs filed the said suit with respect to the management and attendant issues of St. John's Orthodox Syrian Church, Kanniyattunirappu. Pending suit, the Apex O.P.(C)No.446 of 2021 & :-125-:
C.R.P.No.81 of 2021
Court in K.S. Varghese declared that the management and control of all the constituent Churches under the Malankara Church will be as per the 1934 constitution. Therefore, the court below decreed the suit in the following manner:
"1. D2, D3 and D5 to D22 are removed from the posts of trustees, secretary and managing committee members of D1 church, manager of St.John's High School and secretary of St.John's hospital belonging to the church, by a mandatory injunction.
2. D2, D3 and D5 are restrained by a perpetual injunction from functioning as trustees and secretary and D8 to D22 are restrained by a perpetual injunction from functioning as managing committee members of the first defendant church.
3. D6 and D7 are restrained by a perpetual injunction from functioning as the manager and secretary respectively of St. John's High School and St. John's Hospital belonging to the first defendant church.
4. The 4th defendant vicar is directed to convene a pothuyogam of the first defendant church and conduct elections to the managing committee including the posts of the trustees and secretary of the church, the manager of St. John's school and the secretary of St.John's hospital.
5. The process shall be supervised by Adv. A.Balagopal, the commissioner appointed by this Court as per the direction of the Hon'ble High Court. It is made clear that the further role of the commissioner is only the supervision of the election, which as per the 1934 constitution is to be done by the vicar. It is clarified and confirmed that the church and its institutions are liable to be governed under the 1934 constitution of Malankara O.P.(C)No.446 of 2021 & :-126-:C.R.P.No.81 of 2021
Orthodox Syrian Church."
The judgment and decree of the court below was under challenge in R.F.A.Nos.541 of 2019 and 545 of 2019 filed by defendants 3 and
13. After considering the rival contentions this Court noticed that direction Nos.1, 2 and 3 in the decree are incapable of any further contest, since they are only axiomatic consequences of the declaration of law by the Apex Court that the Church will be governed and managed only under the 1934 Constitution. After considering the rival contentions this Court noticed that the essential question surviving is whether the Vicar is entitled as per the 1934 Constitution to conduct elections and whether the findings of the District Court with respect to such competence is, in any manner, in error. This Court held that going by the 1934 Constitution, it is only the Vicar, who could have conducted the elections and who could have taken all steps for the same. Therefore, the court below has acted correctly, in allowing the elections to be conducted by the Vicar, to be supervised by the Advocate Commissioner, so as to ensure that the provisions of the 1934 Constitution are in no manner violated.
12.21. In O.S.No.17 of 2016 pending before the First Additional District Court, Ernakulam, the judgment debtors in the O.P.(C)No.446 of 2021 & :-127-:
C.R.P.No.81 of 2021
E.P.No.565 of 2020 have filed written statement raising counter claim (Ext.B2) for conducting proper election, with participation of all eligible Parishioners, as per the 1934 Constitution, under the supervision of court. In I.A.No.17 of 2020 filed in that suit they have raised a specific contention that the documents relating to the meeting of the Edavaka Yogam alleged to have been conducted on 08.03.2020 are fabricated documents. It is also an admitted fact that O.S.No.327 of 2020 is pending before the Munsiff's Court, Ernakulam, in which a mandatory injunction is sought for directing the Vicar of the Church to conduct a proper election to the managing committee of the Church and also to the managing committee of the school, in accordance with the 1934 Constitution and the approved constitution of the school, after preparing the voters' list of the Church by incorporating all eligible and qualified Parishioners in accordance with the 1934 Constitution. The validity of the Edavaka Yogam alleged to have been conducted on 08.03.2020 has to be decided in those proceedings pending before the civil court.
12.22. In Gurdev Singh v. Narain Singh [(2007) 14 SCC 173] the Apex Court held that the executing court cannot go behind the decree. As the decree did not clothe the decree holder to O.P.(C)No.446 of 2021 & :-128-:C.R.P.No.81 of 2021
pray for execution of the decree by way of removal of the trees, the same could not have been directed by the executing court in the name of construing the spirit of the decree under execution. Paras.7 to 9 of the judgment read thus;
"7. Mr. Swarup Singh, learned senior counsel appearing on behalf of the appellant would submit that the executing Court as also the High Court committed a manifest error in interpreting the decree.
8. We agree with the said contention. A bare perusal of the decree in question would clearly demonstrate that the appellant herein was restrained by a permanent injunction from planting any tree on khasra No.17/2 on the one side and khasra Nos.218/1 and 17/1 on the other side. The decree did not speak of removal of any tree which had already been planted. The executing Court, as noticed hereinbefore, while interpreting the said decree proceeded completely on a wrong premise to hold that there should not be any tree within two karams on either side of the common boundary of the parties.
Such an interpretation evidently is not in consonance with the tenor of the decree. A jurisdictional error, thus, has been committed by the High Court.
9. It is well stated that executing Court cannot go behind the decree. As the decree did not clothe the decree holder to pray for execution of the decree by way of removal of the trees, the same could not have been directed by the learned executing Court in the name of construing the spirit of the decree under execution."
12.23. In Rameshwar Das Gupta v. State of U.P. [(1996) O.P.(C)No.446 of 2021 & :-129-:
C.R.P.No.81 of 2021
5 SCC 728] a Three-Judge Bench of the Apex Court reiterated that, an executing court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order XXI of the Code of Civil Procedure, 1908. It is true that the High Court normally exercises its revisional jurisdiction under Section 115 Code of Civil Procedure, 1908, but once it is held that the executing court has exceeded its jurisdiction, it is the duty of the High Court to correct the same. Para.4 of the said decision reads thus;
"4. It is well settled legal position that an executing Court cannot travel beyond the order or decree under execution, It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order XXI, CPC. In view of the fact that it is a money claim, what was to be computed is the arrears of the salary, gratuity and pension after computation of his promotional benefits in accordance with the service law. That having been done and the court having decided the entitlement of the decree-holder in a sum of Rs.1,97,000/- and odd, the question that arises is whether the executing Court could step out and grant a decree for interest which was not part of the decree for execution on the ground of delay in payment or for unreasonable stand taken in execution? In our view, the executing Court has exceeded its jurisdiction and the order is one without jurisdiction and is thereby a void order. It true that the High Court normally exercises its revisional jurisdiction under Section 115 of CPC but once it is held that the executing Court has exceeded its jurisdiction, it is but the O.P.(C)No.446 of 2021 & :-130-:C.R.P.No.81 of 2021
duty of the High Court to correct the same. Therefore, we do not find any illegally in the order passed by the High Court in interfering with and setting aside the order directing payment of interest."
12.24. In J and K Bank Ltd. v. Jagdish C. Gupta [(2004) 10 SCC 568] a Three-Judge Bench of the Apex Court held that, it is no more res integra that the executing court has no jurisdiction to go behind the decree. It is not disputed that the decree did not contain any direction to promote the respondent to the post of Chief Manager. Under such circumstances, the executing court as well as the High Court fell in error in issuing directions in execution case that the respondent be promoted to the post of Chief Manager.
12.25. In V. Ramaswami Aiyengar v. T.N.V. Kailasa Thevar [AIR 1951 SC 189] a Four-Judge Bench of the Apex Court held that the duty of the executing court is to give effect to the terms of the decree that has already been passed and beyond which they could not go. It is true that the executing court has to interpret the decree, but under the guise of interpretation it could not make a new decree for the parties. Paras.6 to 8 of the decision read thus;
"6. The learned Judges of the High Court observed at the outset that in the working of the Madras Agriculturists' Relief Act alongside the provisions of the Transfer of Property Act O.P.(C)No.446 of 2021 & :-131-:C.R.P.No.81 of 2021
several curious and novel situations had arisen for which it was not possible always to find logical solutions. They then proceeded to discuss the various decisions of the Madras High Court which had a bearing on this point and the conclusion which they reached may be summed up in their words as follows;
"It is no doubt somewhat odd that when a person is declared liable to pay a larger amount he should on payment or tender of a smaller amount get his property exonerated from liability but this is inherent in and arises out of the proposition established by the decisions already dealt with, namely, that by the application of the principle of unity and indivisibility of a mortgage decree a non- agriculturist can indirectly get relief which he cannot directly get".
7. It seems to us that the High Court's approach to the case has not been a proper one and the conclusion it has reached cannot be supported in law.
8. The learned Judges appear to have overlooked the fact that they were sitting only as an executing court and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties."
12.26. In State of M.P. v. Mangilal Sharma [(1998) 2 SCC 510] the Apex Court held that, a suit for mere declaration to any legal character is maintainable under Section 34 of the Specific Relief Act, 1963, though it has been held that the Section is not O.P.(C)No.446 of 2021 & :-132-:
C.R.P.No.81 of 2021
exhaustive. A declaratory decree merely declares the right of the decree-holder vis-à-vis the judgment debtor and does not in terms direct the judgment debtor to do or refrain from doing any particular act or thing. Since in the present case decree does not direct reinstatement or payment of arrears of salary, the executing court could not issue any process for the purpose as that would be going outside or beyond the decree. The respondent as a decree- holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not flow directly and necessarily from the declaratory decree. Paras.4 to 6 of the judgment read thus;
"4. It appears to us that the courts below did not go by even the basic principles of law. A suit for mere declaration to any legal character is maintainable under Section 34 of the Specific Relief Act, 1963, though it has been held that the section is not exhaustive. There is a proviso to the section which bars any such declaration where the plaintiff, being able to seek further relief, omits to do so. Section 34, in relevant part, is as under:
"34. Discretion of court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is O.P.(C)No.446 of 2021 & :-133-:C.R.P.No.81 of 2021
so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declara- tion where the plaintiff, being able to seek further re- lief than a mere declaration of title, omits to do so."
5. Normally in a case like the present one the plaintiff when seeking relief of declaration that he continues to be in service would also seek consequential reliefs of reinstatement and arrears of salary. This the respondent as plaintiff did not do so as the Government not being a private employer would certainly respect a mere decree of declaration. This in fact the appellant did and the respondent has been reinstated. Moreover, once the government servant is appointed to his post or office, he acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be framed by the Government. The legal position of a government servant is more one of status than of contract. In Roshan Lal Tandon v. Union of India [AIR 1967 SC 1889] this Court observed that the hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties and that the emoluments of the government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is, therefore, quite clear that the appellant has rightly reinstated the respondent in service as the decree gave a declaration to his legal status of having remained a government servant throughout as if the order of termination of service never existed. It was not necessary for the respondent to seek relief of arrears of salary in a suit for O.P.(C)No.446 of 2021 & :-134-:
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declaration as he may be satisfied with a mere relief for declaration that he continues to be in service. Of course if he afterwards claims arrears of salary in a suit for the period prior to the relief of declaration he may face the bar of Order II Rule 2 of the Code of Civil Procedure.
6. A declaratory decree merely declares the right of the decree-holder vis-à-vis the judgment-debtor and does not in terms direct the judgment-debtor to do or refrain from doing any particular act or thing. Since in the present case decree does not direct reinstatement or payment of arrears of salary the executing court could not issue any process for the purpose as that would be going outside or beyond the decree. The respondent as a decree-holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not flow directly and necessarily from the declaratory decree. It is not that if in a suit for declaration where the plaintiff is able to seek further relief he must seek that relief though he may not be in need of that further relief. In the present suit the plaintiff while seeking relief of declaration would certainly have asked for other reliefs like the reinstatement, arrears of salary and consequential benefits. He was, however, satisfied with a relief of declaration knowing that the Government would honour the decree and would reinstate him. We will therefore assume that the suit for mere declaration filed by the respondent-plaintiff was maintainable, as the question of maintainability of the suit is not in issue before us."
12.27. In Firm Rajasthan Udyog v. Hindustan Engineering and Industries Limited [(2020) 6 SCC 660] the O.P.(C)No.446 of 2021 & :-135-:
C.R.P.No.81 of 2021
Apex Court held that, in a civil case, the courts have to follow the law in letter and spirit. Execution of an award can be only to the extent what has been awarded/decreed and not beyond the same. In the present case, the arbitrator in its award had only declared the price of land and nothing more. Thus, the question of execution of a sale deed of the land at the price so declared by the arbitrator in its award, could not be directed. Paras.33, 34 and 37 of the judgment read thus;
"33. The submission of the learned Senior Counsel for the respondent that substantial justice has been done by the Court by directing execution of the sale deed, is not worthy of acceptance. In a Civil Case, the courts have to follow the law in letter and spirit, which has not been done in the present case, as in law the sale deed could have been directed to be executed in execution of the Agreement dated 01.02.1980 and not the Award, which was only a declaration, fixing the price of land.
34. This Court, while considering the question of execution of a decree which only declared the rights of the decree holder and nothing more, has in the case of State of M.P. v. Mangilal Sharma [(1998) 2 SCC 510) held as follows:
"6. A declaratory decree merely declares the right of the decree-holder vis-à-vis the judgment-debtor and does not in terms direct the judgment-debtor to do or refrain from doing any particular act or thing. Since in the present case decree does not direct reinstatement or payment of arrears of O.P.(C)No.446 of 2021 & :-136-:C.R.P.No.81 of 2021
salary the executing court could not issue any process for the purpose as that would be going outside or beyond the decree. The respondent as a decree-holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not flow directly and necessarily from the declaratory decree..........."
xxx xxx xxx
37. Similarly, in Gurdev Singh v. Narain Singh [(2007) 14 SCC 173] where the question of execution of a decree prayed for was beyond what was decreed, this Court held as follows: (SCC p.175, paras 7-8) "7. We agree with the said contention. A bare perusal of the decree in question would clearly demonstrate that the appellant herein was restrained by a permanent injunction from planting any tree on Khasra No. 17/2 on the one side and Khasra Nos. 218/1 and 17/1 on the other side. The decree did not speak of removal of any tree which had already been planted. The executing court, as noticed hereinbefore, while interpreting the said decree proceeded completely on a wrong premise to hold that there should not be any tree within two karams on either side of the common boundary of the parties. Such an interpretation evidently is not in consonance with the tenor of the decree. A jurisdictional error, thus, has been committed [Gurdev Singh v. Narain Singh, CR No. 4526 of O.P.(C)No.446 of 2021 & :-137-:C.R.P.No.81 of 2021
2004, order dated 23.2.2006 (P&H)] by the High Court.
8. It is well settled that executing court cannot go behind the decree. As the decree did not clothe the decree-holder to pray for execution of the decree by way of removal of the trees, the same could not have been directed by the learned executing court in the name of construing the spirit of the decree under execution."
It is thus clear that execution of an award can be only to the extent what has been awarded/decreed and not beyond the same. In the present case, the arbitrator in its award had only declared the price of land and nothing more. Thus, the question of execution of a sale deed of the land at the price so declared by the arbitrator in its award, could not be directed."
12.28. In O.S.No.163 of 1977, in addition to the declaratory relief that the Church in question shall be administered in all matters of religious worship and administration of assets under the Constitution of 1934, the plaintiffs have sought for injunction restraining by injunction defendants 2 to 17 from receiving or causing to receive defendants 18 to 22 in the plaint schedule Church and properties or from expending any income of the 1 st defendant Church for the benefit of or at the command or instance of defendants 19 to 22 and restraining defendants 18 to 22 from entering or interfering with the religious worship in or O.P.(C)No.446 of 2021 & :-138-:
C.R.P.No.81 of 2021
administration of the 1st defendant Church, its cemetery, chapel, institutions and assets and restraining defendants 3 and 5 to 17 from carrying on any administration of the assets of the 1 st defendant Church, its chapel and institutions except under the 3 rd plaintiff or whomsoever may succeed him in office and under the Constitution. As evidenced by Ext.A1 decree, by the judgment of this Court dated 11.02.2020 in R.F.A.No.427 of 2003, O.S.No.163 of 1977 was decreed to the extent of declaring that the 1st defendant Church be administered in all matters of religious worship and administration of assets as per the 1934 Constitution. In the judgment dated 11.02.2020 this Court has taken note of the stand taken by the defendants that, they admit that the 1934 Constitution is applicable to the 1st defendant Church.
12.29. As held by a Four-Judge Bench of the Apex Court in V. Ramaswami Aiyengar [AIR 1951 SC 189] the duty of the executing court is to give effect to the terms of the decree that has already been passed and beyond which it could not go. In Mangilal Sharma [(1998) 2 SCC 510], a decision cited before the execution court, the Apex Court held that, a declaratory decree merely declares the right of the decree-holder vis-à-vis the judgment debtor and does not in terms direct the judgment debtor O.P.(C)No.446 of 2021 & :-139-:C.R.P.No.81 of 2021
to do or refrain from doing any particular act or thing.
12.30. In the instant case, Ext.A1 decree is declaratory in nature, without any consequential mandatory or prohibitory injunction, since by the judgment of this Court dated 11.02.2020 in R.F.A.No.427 of 2003, O.S.No.163 of 1977 was decreed to the extent of declaring that the 1st defendant Church be administered in all matters of religious worship and administration of assets as per the 1934 Constitution. In that view of the matter, conclusion is irresistible that, while entertaining E.P.No.565 of 2020 the execution court exercised jurisdiction not vested in it and acted with material irregularity.
In the result, this Civil Revision Petition is allowed by setting aside the common order dated 06.02.2021 in E.P.No.565 of 2020 in O.S.No.163 of 1977 of the First Additional District Court, Ernakulam and that execution petition is dismissed as not maintainable. No order as to costs.
Sd/-
ANIL K. NARENDRAN
JUDGE
yd/bkn
O.P.(C)No.446 of 2021 & :-140-:
C.R.P.No.81 of 2021
APPENDIX OF OP(C)446/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE APPROVED BYE-LAWS
AND THE APPROVAL ORDER BEARING NO.K.DIS-
.G4-22255/73 DATED 10.10.1973.
EXHIBIT P2 TRUE PHOTOCOPY OF THE JUDGEMENT DATED
05.08.2020 IN W.P(C)NO.15943 OF 2020.
EXHIBIT P3 TRUE PHOTOCOPY OF THE NOTICE BEARING
NO.B5/2124/2020 DATED 12.08.2020.
EXHIBIT P4 TRUE PHOTOCOPY OF THE INTERIM ORDER DATED
25.08.2020 IN W.P(C)NO.17731 OF 2020.
EXHIBIT P5 TRUE PHOTOCOPY OF ORDER DATED 1.10.2020
IN R.P.NO.694 OF 2020.
EXHIBIT P6 TRUE PHOTOCOPY OF THE JUDGMENT DATED
11.02.2020 IN R.F.A.NO.427 OF 2003.
EXHIBIT P7 TRUE PHOTOCOPY OF THE EXECUTION PETITION
NO.565 OF 2020 DATED 28.09.2020 IN
O.S.NO.163 OF 1977 IN R.F.A.NO.427 OF
2003.
EXHIBIT P8 TRUE PHOTOCOPY OF THE INTERIM ORDER
E.A.NO.709 OF 2020 DATED 01.10.2020.
EXHIBIT P9 TRUE PHOTOCOPY OF THE INTERIM ORDER
E.A.NO.709 OF 2020 DATED 23.10.2020.
EXHIBIT P10 TRUE PHOTOCOPY OF EXECUTION APPLICATION
NO.780 OF 2020 DATED 14.10.2020.
EXHIBIT P11 TRUE PHOTOCOPY OF THE OBJECTION FILED BY
THE RESPONDENTS IN EA.NO.780 OF 2020 DAT-
ED 27.10.2020.
EXHIBIT P12 TRUE PHOTOCOPY OF THE COMMON ORDER IN
E.P.NO.565 OF 2020 DATED 06.02.2020.
EXHIBIT P13 TRUE PHOTOCOPY OF THE LETTER DATED
26.4.2020 ISSUED BY THE PETITIONER AND
THE OTHER TRUSTEES TO THE VICAR.
EXHIBIT P13(A) TRUE PHOTOCOPY OF THE LETTER DATED
28.4.2020 ISSUED BY THE PETITIONER AND
THE OTHER TRUSTEES TO THE METROPOLITAN
RESPONDENTS 1 TO 3 EXHIBITS:
EXHIBIT R3(A) TRUE PHOTOCOPY OF THE ORDER OF THE DEO
APPROVING THE PETITIONER AS THE MANAGER
FOR A PERIOD OF 5 YEARS FROM 19/05/2015.
O.P.(C)No.446 of 2021 & :-141-:
C.R.P.No.81 of 2021
EXHIBIT R3(B) TRUE PHOTOCOPY OF THE AFFIDAVIT OF
SRI.M.T.ISSAC, THE 2ND JD/5TH RESPONDENT
IN THE OP(c) IN OS 17 OF 2016 DATED
04/03/2020.
EXHIBIT R3(C) TRUE PHOTOCOPY OF THE AFFIDAVIT FILED OF
THE PETITIONER IN RP IN WP NO.15943 OF
2020 DATED 10/09/2020.
EXHIBIT R3(D) TRUE PHOTOCOPY OF THE NOTICE ISSUED BY
THE DEO TO THE PETITIONER ALSO DATED
12/08/2020.
EXHIBIT R3(E) TRUE PHOTOCOPY OF THE COMPLAINT FILED BY
SRI. SAJU P PAULOSE AND ANOTHER BEFORE
THE POLICE CLAIMING AS TRUSTEES OF KANJI-
RAMATTOM ST. IGNATIUS CHURCH DATED
06/08/2020.
EXHIBIT R3(F) TRUE PHOTOCOPY OF THE OBJECTIONS FILED BY
THE JUDGMENT DEBTORS IN E.P.NO.565 OF
2020 IN OCTOBER 2020.
EXHIBIT R3(G) TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER IN E.A.NO.710 OF
2020 DATED 27.10.2020.
EXHIBIT R3(H) TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER IN E.A.NO.780 OF
2020 DATED 27.10.2020.
EXHIBIT R3(I) TRUE PHOTOCOPY OF C.R.P.NO.81 OF 2021
FILED BY THE PETITIONER AND OTHERS DATED
10.02.2021.
EXHIBIT R3(J) PHOTOGRAPH OF MAR IGNATHIOSE YAKOBAYA
SURIYANI PALLY WITH THE PETITIONER,
BISHOP JOSEPH MAR GREGORIOSE ETC.
EXHIBIT R3(K) PHOTOGRAPH OF FRONT COVER AND 3RD PAGE OF
THE ANNUAL EDITION 2014 OF AGNIMAYAN
PUBLISHED BY THE FAMILY UNIT OF THE
YAKOBAYA SURIYANI PALLY KANJIRAMATTAM.
EXHIBIT R3(L) THE PHOTOCOPY OF PAGE 60 OF THE ANNUAL
EDITION 2014 OF AGNIMAYAN.
EXHIBIT R3(M) THE PHOTOCOPY OF PAGE 118 OF AGNIMAYAN
SHOWING THE PETITIONER AND FAMILY.
EXHIBIT R3(N) TRUE PHOTOCOPY OF THE PHOTO TAKEN FROM
PAGE 28 OF AGNIMAYAN SHOWING THE
PETITIONER AND MEMBERS OF THE SCHOOL
MANAGEMENT COMMITTEE ALONG WITH FR.JOSHY
MATHEW AND OTHERS.
EXHIBIT R3(O) PHOTOGRAPH OF JACOBITE BISHOP JOSEPH MAR
GREGORIOSE CELEBRATING HIS 60TH BIRTHDAY
FROM KANJIRAMATTOM YAKOBAYA CHURCH ON
O.P.(C)No.446 of 2021 & :-142-:
C.R.P.No.81 of 2021
08.11.2020.
EXHIBIT R3(P) PHOTOGRAPH OF JACOBITE BISHOP JOSEPH MAR
GREGORIOSE RECEIVING A PLAQUE WHILE
CELEBRATING HIS 60TH BIRTHDAY FROM
KANJIRAMATTOM YAKOBAYA CHURCH ON
08.11.2020.
O.P.(C)No.446 of 2021 & :-143-:
C.R.P.No.81 of 2021
APPENDIX OF C.R.P.NO.81/2021
RESPONDENTS 1 TO 3 ANNEXURES:
ANNEXURE R2(A) TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY
ST.IGNATIUS JACOBITE SYRIAN CHURCH DATED
24.01.2021.
ANNEXURE R2(B) TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY
ST.IGNATIUS JACOBITE SYRIAN CHURCH DATED
28.03.2021.
ANNEXURE R2(C) TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY
ST.IGNATIUS JACOBITE SYRIAN CHURCH DATED
13.01.2021.