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2011 DIGILAW 1053 (KER)

Philip Ancheril C. v. Chacko Kunhaappan

2011-10-18

P.BHAVADASAN

body2011
ORDER : Mr. P. Bhavadasan, J. Unfortunate events gave rise to more than 200 suits relating to the affairs of Malankara Church. On several occasions this Court hoped that the two factions of Malankara Church would see reasons and will have the wisdom to bring about an amicable settlement and things would become smooth and atmosphere peaceful. Though a Single Bench of this Court at the time of disposal of about 8 suits by a common judgment expressed the hope that the judgment of this Court would give a quietus, irrational, illogical and unnecessary disputes and litigation's continued between the two factions and an end is far from sight. The factions became more and more belligerent and the atmosphere more and more tense. Even the decision by the Apex Court does not appear to be capable of putting an end to the litigations and almost every day some action from the side of either of the groups give rise to fresh disputes and discords and the litigations continue to proliferate. 2. OS 1 of 1979, out of which the present execution proceedings arise, was dismissed along with all other suits. Appeals were preferred and by judgment dated 01/06/1990 a Division Bench of this Court allowed the appeals and passed decrees in the suits, which will be referred to later. 3. The matter was carried in appeal to the Apex Court and the Apex Court disposed of the appeals by a common judgment reported in P.M.A. Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001 : 1995 KHC 449 : 1995 (2) KLT SN 37 : 1995 Supp (4) SCC 286 : 1995 AIR SCW 3131 : 1995 AIR SCW 3133. A fresh decree was passed and there were two subsequent modifications to the decree passed by the Apex Court. The subsequent decisions are reported in P.M.A. Metropolitan v. Moran Mar Marthoma Mathews, AIR 1996 SC 3121 : 1996 KHC 1632 : 1996 (8) SCC 470 and by Rev. P.M.A. Metropolitan v. Moran Mar Marthoma Mathews, AIR 1997 SC 1034. The decree passed by the Apex Court consists of three parts. 4. The decree-holders in OS 1 of 1979 have filed EP 1 of 1980. P.M.A. Metropolitan v. Moran Mar Marthoma Mathews, AIR 1997 SC 1034. The decree passed by the Apex Court consists of three parts. 4. The decree-holders in OS 1 of 1979 have filed EP 1 of 1980. In the execution petition it is averred that the judgment-debtors shown to the execution petition are violating the order of permanent prohibitory injunction passed by this Court while decreeing the suits in appeal and it has become necessary to execute the decree so as to prevent them from doing so. The summary of the decrees and the mode of execution are made mention of in the execution petition. 5. The judgment-debtors opposed the execution petition mainly on the ground that what is sought to be executed is the decree passed by the Division Bench of this Court, which has been superseded by the decision of the Apex Court. According to them, there is no executable decree passed by the Division Bench in existence as of now and therefore the execution petition is not maintainable. The complaint now raised by the decree-holders is covered by part 2 of the decree passed by the Apex Court and in the light of the said portion of the decree, nothing further remains and the E.P. is only to be dismissed. Another contention taken by the judgment-debtors is that the decree drawn up is not in tune with the judgment of this Court and therefore the decree cannot be executed. Further contention is that the defendants in OS 1 of 1979 were not shown in a representative capacity and therefore the decree in the said suit at best can bind only the parties to the suit and neither Section 11 Explanation 6 nor 1, Rule 8 can be attracted to the facts of the case. It is specifically averred that the proceedings in OS 1 of 1979 will not show that the defendants in the suit were sued in a representative capacity and if that be so, only the first and second judgment-debtors were parties to the suit and other judgment-debtors shown were not parties to OS 1 of 1979 and decree can bind only defendants 1 and 2. It is also contended that even assuming that the defendants in the suit were sued in a representative capacity, since judgment-debtors 3 to 9 were not eonominee parties to the decree, the decree for injunction cannot be executed as against them unless a fresh decree is obtained as against them. In support of the above contention, learned counsel appearing for the judgment-debtors relied on the decisions reported in Kodia Goundar v. Velandi Goundar, AIR 1955 Mad. 281 , Soman v. Apputty, 1987 KHC 738 : AIR 1988 Kerala 212 : 1987 (2) KLT SN 87, Jatindra Mohan v. Kali Charan, AIR 1960 Calcutta 623. 6. Learned counsel appearing for the decree-holder on the other hand contended that it is fallacious to say that the decree passed by the Division Bench of this Court has been superseded and the only executable decree is that of the Apex Court. The Apex Court only modified the decree of this Court and that portion of the decree passed by this Court relating to which execution is now sought for is very much alive. Learned counsel pointed out that till the elections are conducted and the new committee assumes charge, probably it could be said that, that portion of the decree of the Division Bench stands suspended. But once that is over, that portion of the decree revives and it could not be said that the decree of the Division Bench passed by this Court cannot be executed. Learned counsel pointed out that the decree passed by the Apex Court cannot be construed as completely superseding the judgment of the Division Bench of this Court, which would enable the judgment-debtors to continue to flout the prohibitory injunction passed by the Division Bench of this Court. It was pointed out by the learned counsel that it was not correct to say that the defendants were not shown in a representative capacity and since some of the judgment-debtors were not eonominee parties to the suit, execution cannot be levied against them. It was also contended that the decree obtained in a representative suit can be executed against persons who are not eonominee parties to the suit. It was also contended that the decree obtained in a representative suit can be executed against persons who are not eonominee parties to the suit. It was also submitted that if the theory put forward by the judgment-debtors is to be accepted, then obtaining of a decree in a representative suit would turn out to be a futile exercise and that could not be the object and purpose of the provisions of the Code of Civil Procedure. 7. The main issue that arises for consideration is when the decree of the Division Bench of this Court has been modified by the Supreme Court, which decree survives for being executed. 8. On an earlier occasion, this Court had to consider whether the execution petition is maintainable before a Single Bench of this Court. Initially it was held that since the decree that was sought to be executed was passed by the Division Bench of this Court, the matter has to be placed before the Division Bench of this Court. The Division Bench after bestowing its attention to the issues raised in the matter felt that in fact the decree passed by the Division Bench was a decree that ought to have been passed by the Single Bench and therefore it was held that the E.P. is maintainable before a Single Bench and the E.P. was returned to be tried by a Single Bench of this Court. Thereafter by order dated 15/06/2010 this Court held that the E.P. is maintainable. The issue regarding the right of the decree-holder to execute the decree as also the liability of the additional judgment-debtors and the mode by which the Court can execute the decree were reserved to be decided at a later stage and the issue as to whether the execution petition is maintainable alone was decided at the earlier stage. That order dated 15/06/2010 has been challenged in Execution First Appeal No. 34 of 2010 before this Court and the Division Bench disposed of the appeal with the following observation : "Our attention has been invited to some of the observations made by the learned Single Judge in the impugned order, particularly relating to the executability of the decree. It is true that the learned Single Judge has held that the execution petition is maintainable. We uphold the above view. It is true that the learned Single Judge has held that the execution petition is maintainable. We uphold the above view. But we are satisfied that the question touching upon the executability of the decree as it is now available, especially after the conduct of elections on which the Judgment-Debtors have placed much reliance has to be left open. We make it clear that the said question along with all other related issues shall be decided by the learned Single Judge afresh untrammeled or uninfluenced by any of the observations made in the impugned order." 9. It is thereafter the contentions already referred to have been raised. It is clear from a reading of the order of the Division Bench that this Court has to consider the preliminary objections regarding whether the decree is executable, the mode of execution is proper and the liability of the judgment-debtors, who were not eonominee parties to the decree. 10. If this Court is to accept the contention that by the decree passed by the Apex Court modifying the decree of the Division Bench of this Court, the decree passed by the Division Bench ceases to exist, then necessarily the E.P. has to fail. As regards the contention relating to the liability of the persons who are not eonominee parties to the decree, and whether the mode of execution sought for can be resorted to etc. are matters which are to be decided after taking evidence. 11. Normally, the execution Court cannot go behind the decree. It has to execute the decree as it stands and the Court can deny execution only if the decree is totally without jurisdiction and the mere fact that the decree is not in terms of the judgment may not be a ground for this Court to refuse execution. If any of the parties is aggrieved by the decree, they have to resort to the remedies available under the Code of Civil Procedure. 12. The main plea regarding excitability of the decree passed by the Division Bench of this Court is that it no longer subsists since it has been superseded by the decree passed by the Apex Court. The question that arises is what is the consequence of the decree passed by the Apex Court modifying the decree of this Court. 13. One may here refer to the complaint of the decree-holders. The question that arises is what is the consequence of the decree passed by the Apex Court modifying the decree of this Court. 13. One may here refer to the complaint of the decree-holders. They say that Clauses 2 and 3 of the decree passed by the Division Bench are being violated by the judgment-debtors and therefore the decree has to be executed to prevent them from doing so. It is this claim of decree-holders is countered by the judgment-debtors by pointing out that Part 2 of the decree passed by the Apex Court in modification of the decree passed by the Division Bench governs the situation and therefore the decree passed by the Division Bench no longer subsists. 14. First of all, the question that has to be considered is whether there is merger as claimed by the judgment-debtors in the case on hand. 15. The main complaint voiced by the decree-holder is that in violation of the decree passed by the Division Bench of this Court, the judgment-debtors continued to appoint Vicars and such other things prohibited by the decree. If the judgment-debtors would point out that going by part 2 of the decree passed by the Apex Court, the right of the incumbents to hold posts is to be determined by the Committee to be formed after the elections are conducted. Therefore it is contended that now the elections are conducted, the right or the persons concerned to hold the respective posts will have to be determined by the Committee and this Court has no jurisdiction to go into that matter in view of the decree of the Apex Court. As already stated, if the decree passed by the Division Bench no longer subsists, then necessarily the contention of the judgment-debtors will have to be upheld. 16. It will be useful to refer to the decision reported in Nakul Deo Singh v. Deputy Commandant, 1999 (3) KLT 629 : 1999 KHC 647 : ILR 2000 (1) Ker. As already stated, if the decree passed by the Division Bench no longer subsists, then necessarily the contention of the judgment-debtors will have to be upheld. 16. It will be useful to refer to the decision reported in Nakul Deo Singh v. Deputy Commandant, 1999 (3) KLT 629 : 1999 KHC 647 : ILR 2000 (1) Ker. 1 wherein it was held as follows : "It is now settled after the decision of the Supreme Court in S.S. Rathore v. State of M.P. AIR 1990 SC 10 that when there is an appeal against the original order even in a service dispute, there is a merger of the original order in the appellate order and the decision rendered by the Appellate Authority whether it be of dismissal, reduction, allowance or modification of the order of the original authority, a cause of action accrues to the aggrieved person to challenge the appellate order since the order of the original authority merges in the order of the Appellate Authority. What furnishes the cause of action is the rejection of the appeal by the Appellate Authority. Communication of that order though the order become effective only on such communication to the aggrieved person only furnishes the aggrieved person with a right of action. Receipt of the communication is not a fact in the bundle of facts constituting the cause of action. Even though only on receipt of the order the aggrieved person may be able to challenge that order, receipt of the order cannot be said to be fact forming the cause of action. For, the cause of action arises on the appeal being dismissed by the authority outside the jurisdiction of the Court. The fact that until an order is published or made known, the order does not became effective since it will be open to the authority to change his mind before releasing the order, is not a ground to hold that the communication of the order also forms part of the cause of action to the aggrieved person. The fact that a person who was dismissed from service while he was in service outside the State would have to suffer the consequence of that dismissal when he is in his native place by being rendered jobless, is not a fact which constitutes the bundle of facts giving rise to a cause of action in his favour to challenge his dismissal. That right accrued to him earlier when he was dismissed from service outside the State and he lost his employment. Similarly, when an appeal is filed by him to an Appellate Authority who is outside the jurisdiction of this High Court and that appeal is dismissed by the Appellate Authority, the merger in the decision of the Appellate Authority takes place when the appeal is dismissed and not when the appellant receives the order. What a writ petitioner need plead as a part of his cause of action is the fact that his appeal was dismissed wholly or in part and not the fact that the order was communicated to him. That plea is relevant only to show when the right of action arose in his favour. The receipt of the order only gives him a right of action on the already accrued cause of action and enables him to meet a plea of laches or limitation raised in opposition. That the consequences of a proceeding in the larger sense are suffered by a person in his native place is not a ground to hold that the High Court within the jurisdiction of which the native place is situate is also competent to entertain a Writ Petition under Article 226 of the Constitution. When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal." 17. In the decision reported in Maitheen v. Madhavan Nair, 2007 (2) KLT SN 57, it was held as follows : "When the decree of the Trial Court is challenged in an appeal, where the Appellate Court varies, modifies or confirms the decree of the Trial Court the subsisting and enforceable decree thereafter is the decree of the Appellate Court. The doctrine of merger is based on the principles or propriety in the hierarchy of the justice-delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation. The doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation. The doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. When the Appellate Court passes a decree, the decree of the Trial Court merges with the decree of the Appellate Court, the decree of the Appellate Court supersedes the decree of the Trial Court. The merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverse its decree passed by the Trial Court." 18. In the decision reported in Chandi Prasad v. Jagdish Prasad, 2004 (3) KLT 654 : 2004 KHC 1184 : 2004 (8) SCC 724 was held as follows : "The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the Appellate Authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. It is trite that when an Appellate Court passes a decree, the decree of the Trial Court merges with the decree of the Appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the Trial Court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the Trial Court. When a Special Leave Petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. The concept of doctrine of merger and the right of review came up for consideration recently before this Court in Kunhayammed and Others v. State of Kerala and Another, 2000 (3) KLT 354 (SC) wherein this Court inter alia held that when a Special Leave Petition is disposed of by a speaking order, the doctrine of merger shall apply stating : "41. Once a Special Leave Petition has been granted, that doors for the exercise of appellate jurisdiction of this Court have been let open. Once a Special Leave Petition has been granted, that doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. 42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished: to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. 43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage." In Kunhayammed (supra), it was observed : "12. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage." In Kunhayammed (supra), it was observed : "12. Once the Superior Court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the Superior Court, Tribunal or Authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, Tribunal or the Authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view." The said decision has been followed by this Court in a large number of decisions including Union of India and Others v. West Coast Paper Mills Ltd. and Another, 2004 KHC 459 : 2004 (2) SCC 747 : AIR 2004 SC 1596 : 2004 (164) ELT 375 : 2004 (135) STC 265 . 19. It is unnecessary to dilate further on this aspect for the simple reason that the very same issue in the very same case has been considered by a Single Bench of this Court in the decision reported in Philip v. Fr. Zacharia, 2009 (1) KLT 375 : 2009 (1) KHC 28. The question that was posed for consideration in the very same proceedings before the Court was whether the Single Bench had jurisdiction to entertain execution of the decree passed by the Apex Court modifying the decree passed by the Division Bench. Answering the question, this Court held as follows : "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." 20. A reading of the above decision will show that the decree that is available for execution is only the decree passed by the Apex Court. In the light of the above decision, nothing further remains to be considered in this execution petition. A reading of the above decision will show that the decree that is available for execution is only the decree passed by the Apex Court. In the light of the above decision, nothing further remains to be considered in this execution petition. It is clear that the decree passed by the Division Bench of this Court no longer subsists and the decree available for execution is the decree passed by the Apex Court and there is nothing to show that the decree-holders are seeking execution of the decree passed by the Apex Court. The result is that it has to be held that this execution petition is not maintainable, Accordingly, this execution petition is dismissed. In the light of the finding that the execution petition is not maintainable, the other issues need not be gone into.