Research › Search › Judgment

Kerala High Court · body

2008 DIGILAW 776 (KER)

Philip v. Fr. Zacharia

2008-12-11

V.RAMKUMAR

body2008
Judgment : 1. When this execution petition came up for consideration today, the learned Sr. Counsel appearing for the respondents raised a preliminary objection regarding the maintainability of this E.P. He had three objections regarding the maintainability. They are the following: i) The E.P. has been filed under O.XXI Rr.10, 11(2) and 15(1) C.P.C. Since the E.P. is for executing the decree passed by the Supreme Court in Civil Appeal No. 4957 of 1995 the provision under which the E.P. can be filed is under O.XLV R.15(1) C.P.C. and not O.XXI C.P.C. ii) After the Supreme Court has recorded full satisfaction of the E.P. pursuant to the election conducted, nothing remains to be executed in the decree. iii) In view of O.XLV R.15(1) C.P.C. the E.P. if at all maintainable, can be filed only before the Court from which appeal to the Supreme Court was preferred. Admittedly, the appeal to the Supreme Court was preferred from the judgment and decree dated 01/06/1990 in A.S. 359/1980 disposed of by a Division Bench of this Court. Hence a Division Bench alone can entertain the Execution Petition. 2. Thelearned counsel appearing for the petitioners made the following reply to the preliminary objection: The direction to conduct the election was only a modification of the decree passed by the Supreme Court and with the completion of election it cannot be said that the decree has been fully satisfied. The petitioners are not seeking to execute the decree passed by the Supreme Court but are seeking to execute the decree passed on 6.1990 by the Division Bench of this Court in A.S.359 of 1980. It was the respondents who preferred the appeal therefrom to the Supreme Court and the decision dated 20/06/1995 of the Supreme Court as reported in (1995 (2) KLT SN 28 (C.No.37) SC = AIR 1995 SC 2001), therefore, cannot result in merger of the decree. The decree which is executable is that of the Division Bench. 3. I am afraid that I cannot agree with the above submissions made on behalf of the petitioner. It is admitted that the suit O.S. No. 1/1979 was disposed of by a learned Single Judge of this Court on 6.1980. The decree which is executable is that of the Division Bench. 3. I am afraid that I cannot agree with the above submissions made on behalf of the petitioner. It is admitted that the suit O.S. No. 1/1979 was disposed of by a learned Single Judge of this Court on 6.1980. The appeal from the said decree was preferred as A.S. 359/1980 before a Division Bench of this Court and it was the Division Bench which disposed of the appeal as per judgment and decree dated 6.1990. The matter was taken up further in appeal before the Supreme Court as Civil Appeal No.4507 of 1995. As per the final judgment and decree dated 20.6.1995 reported in (1995 (2) KLT SN 28 (C.No.37) SC = AIR 1995 SC 2001), the Supreme Court confirmed the decree subject to certain modifications after hearing both sides. Para 150 of (1995 (2) KLT SN 28 (C.No.37) SC = AIR 1995 SC 2001) makes this position very clear/When a decree is appealed from and the superior Court either affirms or modifies or reverses the decree passed by the lower Court it results in a merger of the lower Courts decree with that of the Superior Court and the decree which would thereafter be executable would be the decree of the superior Court. (Vide -Chandi Prasad & Ors. v. Jagdish Prasad & Ors. (2004 (3) KLT 654 (SC) = (2004) 8 SCC 724) and GurswarupJoshi v. Beena Sharma & Ors., ((2006) 5 SCC 119). Whether the appeal was preferred by the petitioners or by the respondents, the legal consequence is the same. The decree of the Appellate Court namely that of the Division Bench of this Court having merged with the decree of the Supreme Court, the decree which is executable is that of the Supreme Court. 4. Sub-rr. 1 and 2 of R.15 of C.P.C. reads as follows: "15. Procedure to enforce orders of the Supreme Court.--(1) Whoever desires to obtain execution at any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Court was preferred. Procedure to enforce orders of the Supreme Court.--(1) Whoever desires to obtain execution at any decree or order of the Supreme Court shall apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the Court from which the appeal to the Supreme Court was preferred. (2) Such Court shall transmit the decree or order of the Supreme Court to the Court which passed the first decree appealed from, or to such other Court as the Supreme Court by such decree or order may direct and shall (upon the application of either party) give such directions as may be required for the execution of the same; and the Court to which the said decree or order is so transmitted shall execute it accordingly, in the manner and according to the provisions applicable to the execution of its original decrees." Admittedly, the Court from which the appeal to the Supreme Court was preferred was the Division Bench which disposed of AS. No. 359/98. If so, the petition for execution can be filed only before the Division Bench. The E.P. sent up for consideration before a Single Judge of this Court is, therefore, not entertainable. In this view of the matter, I am not considering the other objections raised by the respondents, as this Execution Petition is not maintainable before a Single Judge. The Registry shall send the E.P. for consideration by a Division Bench, which, in turn, has the power to transmit the decree (assuming full satisfaction of the decree is not recorded so far) to a learned Single Judge of this Court as provided under sub-r.(2) of R.15 of O.XLV C.P.C. or to the First Additional District Court, Ernakulam (Special Court to try church cases) where the suit was initially instituted as was done by a Division Bench of this Court in the Order dated 6.4.2001 in C.M.P. 209/97 in A.S. 331 of 1980.