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1961 DIGILAW 73 (KER)

Kesava Menon v. Damodara Menon

1961-02-17

P.GOVINDA MENON

body1961
Judgment :- 1. The petitioner who is appointed as Manager of the Kattappuram Vettakkoru Makan Temple in Kadikad has filed this revision petition against the order passed by the Munsiff-Magistrate of Ponnani dismissing his petition under S.87 of the Hindu Religious and Charitable Endowments Act, 1951. 2. The respondent was the manager of the temple but he was dismissed and in his place the petitioner was appointed manager. The respondent refused to hand over charge, and so the petitioner applied to the Assistant Commissioner and obtained a certificate under S.87 of the Act. The petitioner then applied to the First Class Magistrate within whose jurisdiction the temple was situated and produced his appointment order and the certificate. 3. On notice being issued by the Court to the respondent he contended that the certificate which is produced is not a valid certificate as no notice was given to him and his objections were not heard and disposed of as required by the proviso to S.87. The learned Magistrate accepted the contention and dismissed the petition. This petition is to revise the order dismissing the petition. 4. S.87 empowers the issue of a certificate by the Commissioner after giving due notice to the affected persons and hearing their objections if any. An appeal is provided from the order on the issue of such a certificate and after the disposal of the appeal if any the lawfully appointed trustee or executive officer has got to present it to the Magistrate of the First Class having jurisdiction and the Magistrate on such application has to direct the delivery to the person appointed of the possession of the religious institution, records, accounts or properties comprised in the certificate. 5. The contention of the respondent is that the certificate does not fulfil the requirements of S.87 and as such no order for delivery could have been made on such an invalid certificate. It is admitted in this case that notice to the respondent was ordered for his appearance on 11-5-59 before the Assistant Commissioner. Notice was served only on 12-5-59 and the Assistant Commissioner without seeing whether notice was actually served passed the order on 11-5-59 itself. The question is whether on such certificate the First Class Magistrate was bound to deliver the properties. 6. Notice was served only on 12-5-59 and the Assistant Commissioner without seeing whether notice was actually served passed the order on 11-5-59 itself. The question is whether on such certificate the First Class Magistrate was bound to deliver the properties. 6. The powers of the First Class Magistrate acting under S.87 of the Act have come up for consideration in a number of decisions of the Madras High Court. It is only necessary to refer to the decision in S.R.M.S. Chidambaram Chettiar In re (1958-1 MLJ. 314) where Ramaswamy, J., has stated as follows: "It is well settled that proceedings for delivery under S.87 of the Act are in the nature of execution proceedings by reason of the proviso contained in the section itself, which requires the commissioner to hear the parties likely to be affected, & consider their objections, if any, before issuing the certificate. It is also well settled law in this State that the executing court has no jurisdiction to question the correctness, legality or propriety of the decree which it is called upon to execute. A court executing a decree cannot go behind the decree. It must take the decree as it stands The court executing a decree cannot alter, vary or add to the terms of the decree even by consent of parties." Reference has been made to the decision in Ranganayakulu v. P. Venkatanarasimhayya (1949-1 MLJ. 200) where Satyanaryana Rao, J. expressed his inability to follow an earlier ruling of Happel, J. in Kinnayakka Ballal v. Narnappayya (194611 MLJ. III) which was a petition under S.78 of the earlier Act on the ground that the order of the Board according to law then embodied in the section contemplated no enquiry. The learned judge stated: "there would be considerable force in the contention that an application for delivery was in the nature of an application for execution, if there was a prior order of the Board between the patties holding that the property belonged to the temple or the trust." In the same decision reference has been made to the Bench decision in Prattipati Dandia v. Venkatarama Dikahutulu (1953-11 MLJ. 550) where it was held that if the conditions of S.87 are complied with the Magistrate is bound to direct delivery of the property and records to the applicant though the Archaka did not admit the title of the temple. 7. 550) where it was held that if the conditions of S.87 are complied with the Magistrate is bound to direct delivery of the property and records to the applicant though the Archaka did not admit the title of the temple. 7. All these decisions therefore contemplate cases where a certificate has been issued after due enquiry. The Magistrate has to decide judicially whether the requirements of S.87 of the Act have been complied with and it is only on production of such a valid certificate that he is bound to order delivery. Under S.87 of the Act the legislature intended that petition to the Magistrate would be a more expeditious method of restoring the properties to public institutions and it has been provided that the Commissioner should give notice to the affected parties and consider the objections before issuing the certificate. This provision gives an opportunity to the affected office-holder to prove that no certificate should be issued. This preliminary enquiry and the certificate issued after hearing parties was thought by the legislature to be a sufficient guarantee against arbitrary eviction. 8. If this salutary rule is not followed then the certificate ceases to be a valid certificate capable of execution. The learned counsel for the petitioner has not been able to point out any single decision which has gone to the extent of holding that even if the certificate issued is not a valid certificate, without complying with the terms of the section still the First Class Magistrate is bound to order delivery. All the cases which have held that as an executing court the First Class Magistrate is precluded from questioning the certificate and is bound to enforce it have proceeded on the basis that the terms of S.87 have been complied with and the certificate that is issued is a valid certificate. 9. The question whether a decree which contravenes the mandatory provisions of 0.33 R.1 of the CPC. is a nullity and if it is a nullity whether the executing court can refuse to execute the decree had come up for consideration in a case in Varghese Mathen v. Kochumakkaru Ismail (1943 TLR. 444). 9. The question whether a decree which contravenes the mandatory provisions of 0.33 R.1 of the CPC. is a nullity and if it is a nullity whether the executing court can refuse to execute the decree had come up for consideration in a case in Varghese Mathen v. Kochumakkaru Ismail (1943 TLR. 444). Krishnaswamy Iyer, C.J., delivering the judgment of the Special Bench after going into the case-law held: "The order of appointment of a person as guardian who refused to act as such was illegal and the minor continued unrepresented throughout the entire course of the proceedings in the suit. The decree was therefore a nullity. An execution court is as much entitled as any other court to enquire and ascertain all facts and circumstances necessary to find out whether there is in fact and in law a decree capable of execution. If a decree is only voidable, but is not a nullity the executing court cannot go into the question whether the decree which is a subsisting decree can be avoided or not. But if a decree though in form a decree, is a nullity under the law, the executing court is duty bound, and in law has the power, to ascertain that fact." Therefore the argument that the First Class Magistrate as an executing court cannot go into question whether the certificate is a valid certificate is not tenable. 10. In Kiran Singh v. Chaman Paswan (AIR. 1954 SC. 340) Venkatarama Ayyar, J., observed: "It is a fundamental principle that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree and such a defect cannot be cured even by consent of parties." 11. In these circumstances I am of opinion that the First Class Magistrate was perfectly justified in refusing to order delivery of the immovable properties belonging to the temple to the petitioner. The revision petition is therefore dismissed. This will not preclude the petitioner from getting possession of the temple etc. In these circumstances I am of opinion that the First Class Magistrate was perfectly justified in refusing to order delivery of the immovable properties belonging to the temple to the petitioner. The revision petition is therefore dismissed. This will not preclude the petitioner from getting possession of the temple etc. where certificate need not be produced under the Act. Dismissed.