Judgment : The revision petitioner herein is the respondent and the respondent herein is the petitioner before the District Munsif-cum-Judicial Magistrate, Mudukulathur in Crl.M.P.No.1574 of 1997. 2. The respondent/petitioner herein filed an application under Sec.101 of H.R. & C.E. Act of 1959 before the Judicial Magistrate at Mudukulathur in Crl.M.P.No.1574 of 1997 to direct the delivery of possession of Arulmigu Kamatchi Amman Karupannaswami Thirukoil, Sayalgudi to the petitioner, who is the fit person appointed and in case if there is any resistence, to direct the Inspector of Police, Sayalgudi to give necessary bandobust to the petitioner in taking delivery of possession of the said temple on the following grounds: The petitioner is now working as Executive Officer of Arulmighu Chookanathaswami Thirukoil, Aruppukottai, Kamarajar District. He has been appointed as fit person of Arulmighu Kamatchi Karupannaswami Thirukoil, Sayalgudi, Kadaladi Taluk, Ramnad District as additional charge to his work by the learned Joint Commissioner, H.R. & C.E., Sivaganga in his proceedings Nada Na.Ka. No.5682/96/21, dated 15. 1997. The respondent was also directed to hand over the administration of the temple immediately to the petitioner and the petitioner was also directed after taking the charge of the temple to report to him. Since the petitioner was appointed to discharge the functions of the Arulmighu Kamatchi Karuppapnaswamy Thirukoil, Sayalgudi, which is listed as per Sec.46(1) of the Act by the learned Commissioner, in accordance with the provisions of the Act, the respondent is not entitled to be in possession on his own account of the said temple. When the petitioner went to the temple on 3rd June, 1997 to take charge of the temple as per the order mentioned above, the respondent resisted it and prevented him from obtaining possession of the temple and threatened him with dire consequences. Hence, this petition. 3. The revision petitioner/respondent herein filed a counter-affidavit raising the following objections for the delivery of possession of the said temple: The petition under Sec.101 of the H.R. & C.E. Act of 1959 has been filed without getting “certificate” from the Commissioner, H.R. & C.E., Chennai, which is a mandatory one as prescribed in Sec.101 of the Act. The order of the Joint Commissioner, Sivaganga Vide Na.Ta.Ka. No.5682y96/Al dated 15. The order of the Joint Commissioner, Sivaganga Vide Na.Ta.Ka. No.5682y96/Al dated 15. 1997 on which basis the present petition is filed, is under challenge before the Commissioner, H.R & C.E., Chennai by way of R.P.No.14 of 1997.The respondent herein filed the revision petition (R.P.No.14 of 1997) before the Commissioner as there is a statutory appeal under Sec.21 of the Act. The petitioner having fully known about the revision petition pending before the Commissioner, has filed this petition with motivated and vested interest. The Joint Commissioner passed an order on 15. 1997 itself appointing the petitioner herein as a fit person. The respondent’s forefathers founded the temple called “Shri Kamatchi-amman-Karuppanaswamy Koil” in their own land out of their own income exclusively for their family worship, which is now being managed and maintained by the respondent herein out of his own income. The said temple is purely a private one and meant for family worship not dedicated to the public and the temple will not come under the definition of a temple. 4. On the above pleadings and on the materials placed before him, the learned Judicial Magisrate at Mudukulathur came to the conclusion that the application filed by the respondent/petitioner herein is maintainable under law, and accordingly he directed the delivery of possession of the temple referred to above along with the connected documents and account books and to give protection to the respondent/petitioner herein by Sayalgudi police for taking such delivery of possession of the said temple. Aggrieved against the said findings of the learned Judicial Magistrate at Mudukulathur, the revision petitioner herein, who is me respondent before the lower court has preferred this revision petition under Secs.397 and 401 of Crl.P.C. 5. After hearing the learned counsel for both the parties, the points that arise for consideration in this revision petition are as follows: .(1) Whether the respondent/petitioner herein is entitled to the delivery of possession of Arulmighu Kamatchi Karupannaswami Thirukoil at Sayalgudi and for necessary police protections as prayed for by him in para 5 of the petition? .(2) To what relief is the revision petitioner entitled? .(2) To what relief is the revision petitioner entitled? 6.Point No.1: It is not in dispute that the revision petitioner herein filed a petition under Sec.63(a) of H.R. & C.E. Act, of 1959 before the Joint Commissioner of H.R. & C.E. to decide the nature and character of the disputed temple viz., Arulmighu Kamatchi Karupannaswami Thirukoil at Sayalgudi and the said petition ended in dismissal as against the revision petitioner on 15. 1997. It is also not in controversy that on 15. 1997 the respondent/petitioner herein was appointed as a fit person of the said temple by the Joint Commissioner of H.R. & C.E. A revision was preferred by the revision petitioner herein before the Commissioner of H.R. & C.E. in R.P.No.14 of 1997 and the said revision in R.P.No. 14 of 1997 was against the order of appointment of the respondent herein as fit person on 15. 1997 and the said revision in R.P.No. 14 of 1997 is still pending and there was no stay granted by the revisional authority viz.. Commissioner of H.R. & C.E. It is stated by the learned counsel for the petitioner that the appeal time for preferring the appeal as against the decision rendered by the Joint Commissioner under Sec.63(a) of H.R. & C.E. Act of 1959 to decide the nature and character of the disputed temple is 60 days from 15. 1997 and the revision petitioner herein applied for the certified copy of the order dated 15. 1997 on 6. 1997, and the certified copy of was made ready on 8. 1997 and the appeal was preferred on 19. 1997 before the Commissioner of H.R. & C.E. and it is not yet numbered as there is no sitting of the Commissioner of H.R. & C.E. and hence the petitioner could not move for stay of the order dated 15. 1997 passed under Sec.63(a) of the H.R. & C.E. Act. In view of the order of appointment of the respondent/petitioner herein as fit person on 15. 1997 the respondent herein filed an application under Sec.101 of H.R. & C.E. Act before the Judicial Magistrate, Mudukulathur to order delivery of possession on the said temple in Crl.M.P.No.1574 of 1997 and it was allowed on 19. 1997 by the Magistrate against which this revision petition is filed before the High Court on 29. 1997. 1997 the respondent herein filed an application under Sec.101 of H.R. & C.E. Act before the Judicial Magistrate, Mudukulathur to order delivery of possession on the said temple in Crl.M.P.No.1574 of 1997 and it was allowed on 19. 1997 by the Magistrate against which this revision petition is filed before the High Court on 29. 1997. These are the admitted facts in this case as stated by the learned senior for revision petitioner counsel Mr.V.Chinnaswamy for revision petitioner and in the light of the admitted facts we have to consider the contentions raised by both the parties in this revision petition. 7. The Executive Officer of a temple is a person appointed as fit person to discharge the functions of a trustee within the meaning of Sec.101(1) of H.R. & C.,E. Act (Vide: Subbayya Gurukkal v. Manicka Vinayagar Temple, (1942)1 M.L.J. (NRC.) 3). In other words the fit person and the trustee are one and the same, and the fit person can be equated to a trustee. This proposition of law is not questioned by the learned senior counsel for the revision petitioner, and so the respondent/petitioner herein, who is an executive officer and who is appointed as a fit person of the disputed temple, can maintain the application under Sec.101(1) of H.R. & C.E. Act since there was no stay in the appeal preferred by the revision petitioner before the Commissioner as against the order dated 15. 1997, the revision petitioner herein cannot object to the maintainability of the petition under Sec. 101(1) of H.R. & C.E. Act on that score. 8. One another objection raised by the revision petitioner in his counter statement filed before the learned Magistrate is that a certificate of the Commissioner is required under Sec. 101(1) of H.R. & C.E. Act to take delivery of possession of the disputed temple. In other words the revision petitioner herein raised an objection before the learned Magistrate that the Certificate under Sec.101(1) of H.R. & C.E, Act from the Commissioner of H.R. & C.E. Act is heeded to take delivery of possession of the disputed temple, and it has been rejected by the learned Magistrate. Such an objection is also untenable for the following reasons. Such an objection is also untenable for the following reasons. A plain reading of the Sec.101(1) of H.R. & C.E. Act will show that such a certificate by the Commissioner of H.R. & C.E. is required for the possession of the properties belonging to the said temple and not for the temple itself. In other words, the certificate mentioned in Sec.101(1) of H.R. & C.E. Act is not necessary for effecting delivery of the temple itself along with its records like account books (Vide: (1974)1 M.L.J. (NRC.) 2. It is not correct to say on the part of the revision petitioner that in the absence of the certificate from the Commissioner of H.R. & C.E. as mentioned in Sec.101(1) of H.R. & C.E. Act there cannot be delivery of possession of the disputed temple and its records and accounts books on an application filed by fit person under Sec.101(1) of H.R. & C.E. Act for the delivery of the temple simplicitor. (Vide: Sambandam v. T.S. V.Kandaswami Padayachi, (1970)2 M.L.J. 368, Alagappa Gounder v. P.A.Karuppa Chetty Gounder, (1956)2 M.L.J. 453 , Duraiswami Reddiar v. Gurunatha Iyer, (1956)2 M.L.J. 473 . Therefore one of the objections raised in the counter statement of the revision petitioner before the lower court is untenable and it is not entitled to any acceptance. .9. However the learned senior counsel Mr.V.Chinnaswamy on behalf of the revision petitioner contended that the petition filed by the respondent/petitioner herein under Sec.101(1) of H.R. & C.E. Act even for the possession of the disputed temple will not lie against the revision petitioner as the temple belongs to the revision petitioner, and he is in possession of the said temple in his own right, and he is not a trustee of the said temple, and so such petition would not lie against him. He further elaborated this point by pointing out the provision of law in Sec.101(1) of H.R, & C.E. Act wherein it is stated that when the Executive Officer appointed as a fit person is resisted in obtaining possession of the religious institution or of the records and account books by any person claiming or deriving title from such trustee, the office holder or servant not being the person claiming in good faith to be in possession on his own account, delivery can be ordered by Magistrate. In support of the above contention the learned senior counsel for the revision petitioner relied on two decisions cited below. .10. In the decision reported in Ranganayakiammal v. Chockalingam, 1966 L.W. (Crl.) 127 at 128, it was laid down as follows: .“As will be seen from a glance at Sec.101, it is not every person who may be in possession of the properties of a religious endowment, against whom a proceeding can be taken under this provision of law. On the contrary, the provision is explicitly restricted to a person in possession who is a trustee, office holder or servant of the religious institution, or one who has been dismissed or suspended from such office, or any person claiming or deriving title from such trustee, office holder or servant. This is a positive limitation. Not merely this. There is also a negative limitation, in that a person, who could claim in good faith to be in possession on his own account, or on account of some person not being such a trustee, office holder or servant is definitely excluded”. .11. In another decision of our Madras High Court reported in Subbu Chetty v. Munuswamy Chetty and another, (1957)1 M.L.J. 161 , it was held as follows: .“Where the person in possession of the property claimed title in his own right and in the absence of any evidence and finding that he was an ex-trustee and in that capacity continued in possession, he could not be ousted by a summary order under Sec.87 of the Madras Hindu Religious and Charitable Endowments Act.” .12. In other words the learned Senior Counsel for the revision petitioner stated that the revision petitioner herein is neither a trustee nor an office holder nor a servant of the temple nor a person claiming or deriving title from such trustee, office holder or servant and further more the revision petitioner is a person, who would claim in good faith to be in possession of the disputed temple on his own account. The learned counsel for the respondent/ petitioner herein countenanced the above arguments by stating that the revision petitioner is an office holder of the disputed temple since he formed a society which was registered, and there are materials available from the order passed by the learned Joint Commissioner dated 15. The learned counsel for the respondent/ petitioner herein countenanced the above arguments by stating that the revision petitioner is an office holder of the disputed temple since he formed a society which was registered, and there are materials available from the order passed by the learned Joint Commissioner dated 15. 1997 in O.A.No.7 of 1994, which is an application filed by the revision petition himself to declare that the said temple is not a public temple and it is a family temple of the revision petitioner which plea has been negatived by the Joint Commissioner in his order dated 15. 1997 in O.A.No.7 of 1994. The learned counsel for the respondent/ petitioner herein has also taken me through the entire order passed by the Joint Commissioner of H.R. & C.E. dated 15. 1997 in O.A.No.7 of 1994 in support of his contention that the revision petitioner was an office holder of the disputed temple by forming a society under the name and style of which society was itself registered under the Societies Act and therefore the revision petitioner cannot claim that he is not an ex-trustee or an ex-office holder. The learned counsel for the respondent/petitioner herein further stated that the appeal filed by the revision petitioner as against the order dated 15. 1997 of the Joint Commissioner, H.R. & C.E. not yet numbered and it has not seen the light of the day, and there is no stay at all, and further more the revision petitioner has availed the alternative remedy before the Commissioner of H.R. & C.E. by filing a revision petition in R.P.No.14 of 1997 questioning the very appointment of the respondent/petitioner herein as the fit person of the disputed temple, and even there in R.P.No.14 of 1997 there is no stay of the said order appointing the respondent/ petitioner herein as a fit person, and in those circumstances, the petition filed by the respondent/ petitioner under Sec.101(1) of H.R. & C.E. Act will lie against the revision petitioner, and the respondent herein is entitled to the relief prayed for before the learned Magistrate. 13. To appreciate the above contentions it is but necessary for me to refer to the findings recorded by the Joint Commissioner in his order dated 15. 1997 in O.A.No.7 of 1994 which reads as follows: “The petitioner was called absent and set ex parte. 13. To appreciate the above contentions it is but necessary for me to refer to the findings recorded by the Joint Commissioner in his order dated 15. 1997 in O.A.No.7 of 1994 which reads as follows: “The petitioner was called absent and set ex parte. The Inspector was examined as (W) and his report was marked as Ex.C-1. He has deposed that the suit temple is situated in S.No.185 at Sayalgudi Village, Kadaladi Taluk, the total extent of which is 0.43 cents including vacant place and shopping complex consisting of 21 shops. According to him the origin of the temple is not known and the people belonging to Yadava, Devar, Pillai, Navidhar, Chakkiliar Kudumbar and Adi Drivadar Communities are worshipping as their “Kula Deivam” from time immemorial. Till 1991 the temple was administered by the people belonging to the above said seven community people and the pooja was performed by Sathyakkonar, Muthuvijayakonar, Karthudayakonar, Sathyakonar and Karuthudayakkonar one after another hereditarily, preferably by the eldest male member of the family. Accordingly Sathyayakkonar is the family. Accordingly Sathyayakkonar is the present Poojari for the temple. As such the petitioner, being the son of younger son of Kartuhuayakonar, never did the poojari duty. While so in the year 1990 the seven community people resolved to form a society for the better administration of the temple and registered the society in the name of with the society registration office at Ramnad in Reg.No.25/90. with M.Krishnakone the petitioner herein as the President and M.Karuppaswamy as the Secretary and eleven other persons as other office bearers. The society raised funds by taking advances from the proposed shopkeepers and out of such funds constructed 21 shops at the road margin of the temple site. During this period the temple was under the effective administrative control of the petitioner in the capacity as the President of the society. At this juncture when the society was about to collect the first month’s rent from the shops, the petitioner M.Krishnakone surprised every one by claiming ownership over the temple and its properties and started threatening other members of the community. So the society in its meeting passed resolution removing the Thiru.M.Krishnakone from the Presidentship and elected one Thiru Rajapandi Thevar as its President.” 14. So the society in its meeting passed resolution removing the Thiru.M.Krishnakone from the Presidentship and elected one Thiru Rajapandi Thevar as its President.” 14. Thus there is material on record and there is a finding to the effect the revision petitioner herein was an ex-trustee or ex-office holder of the disputed temple by forming an association/society which was registered under the Societies Act in respect of the Management of the said temple, and in those circumstances it is futile contend that the revision petitioner is in possession of the temple in controversy in his own right and he is neither a trustee nor an ex-trustee or an office holder at any point of time. The findings recorded by the learned Joint Commissioner of H.R. & C.E. on 15. 1997 in O.A.No.7 of 1994 are yet to be tested by the appellate authority viz., the Commissioner of H.R. & C.E. and till then the findings recorded by the Joint Commissioner, H.R. & C.E. stare at our face including the revision petitioner herein. In such circumstances I am of the view that the application for delivery of possession of the disputed temple under Sec. 101(1) of H.R.& C.E. Act is in the nature of application for execution, and it is not open to the revision petitioner objecting to such application for delivery of possession of the disputed temple along with its records and account books and it does not appear to be necessary for the learned Magistrate to go behind the order passed by the Joint Commissioner, and if the order of appointment of the respondent/petitioner as a fit person of the disputed temple if defective or cannot be sustained for any reason, the remedy of the revision petitioner is elsewhere, and the impugned order dated 19. 1997 in Crl.M.P.No.1574 of 1997 directing delivery of possession of the disputed temple made by the learned Magistrate cannot be set aside on any one of the grounds mentioned in the counter statement of the revision petitioner before the learned Magistrate and on the contentions raised on behalf of the revision petitioner before this High Court. 1997 in Crl.M.P.No.1574 of 1997 directing delivery of possession of the disputed temple made by the learned Magistrate cannot be set aside on any one of the grounds mentioned in the counter statement of the revision petitioner before the learned Magistrate and on the contentions raised on behalf of the revision petitioner before this High Court. In as much as the revision petitioner claimed the disputed temple as his family temple or private temple and later he formed a society for the administration of the temple, it follows that he is not a person in good faith to claim to be in possession on his own account. Hence, there is no illegality or impropriety in the findings of the learned Magisrate or in the order passed by the learned Magistrate in Crl.M.P.No.1575 of 1997 dated 19. 1997, and consequently I answer this point as against the revision petitioner and in favour of the respondent/petitioner herein. 15.Point No. 2 Consistent with my findings on the earlier point I am to hold that this revision petition is devoid of merits, and the same has to be dismissed, and consequently I answer this point as against the revision petitioner and in favour of the respondent/ petitioner herein. 16. In the result, the criminal revision petition is dismissed. The order of the learned Judicial Magistrate at Mudukulathur dated 19. 1997 in Crl.M.P.No.1574 of 1997 is confirmed. Consequently, the stay petition in Crl.M.P.No.4916 of 1997 is also dismissed as unnecessary.