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2012 DIGILAW 4187 (MAD)

Rev. M. Thankamony v. Rasalam

2012-10-08

S.PALANIVELU

body2012
Judgment :- The petitioners are the defendants in O.S.NO.55 of 1997, on the file of the Subordinate Judge, Kuzhithurai. It is the suit filed by the respondents/Plaintiffs for following reliefs: a. To declare that the above said gift deed dated 26.5.1997 is incompetent, invalid and void ab-initio. b. The first defendant who is in illegal occupation of the parsonage may be evicted there from (c) The defendants may be restrained by an injunction from taking or assuming possession of the suit property and from conducting their denominational prayers or their other activities therein (d) in case during the pendency of the suit the defenants some how or other taken forcible and illegal possession of the suit property. Plaintiffs may be allowed to recover possession of the property from the defendants with mesne profits. 2. The trial Court refused to grant the reliefs (b) and (c) and granted the reliefs (a) and (d), namely recovery of possession. An appeal preferred by these petitioners in A.S.No.121 of 2004 was dismissed and that they have preferred a Second Appeal before this Court, in which stay was not granted and notice was only ordered. In the meanwhile, the respondents initiated execution proceedings in E.P.No. 16 of 2011, on the file of the Subordinate Judge, Kuzhithurai for recovery of the suit properties, namely, "a plot of 30.750 cents and the Church, Parsonage and other buildings and all other things found thereon in Murampuvilai Puravidom measuring 1.34 acres from the petitioners." 3. Pending the said E.P, an order of delivery has been passed and the same is yet to be executed. These petitioners filed an Execution Application under Section 47 CPC praying the Executing Court to consider the questions arising between the parties to the suit and after satisfaction that the decree is unexecutable, the Execution Petition may be dismissed. Pending the said E.P, an order of delivery has been passed and the same is yet to be executed. These petitioners filed an Execution Application under Section 47 CPC praying the Executing Court to consider the questions arising between the parties to the suit and after satisfaction that the decree is unexecutable, the Execution Petition may be dismissed. In the affidavit filed along with the Execution Application, it is inter alia contended that the third defendant is Church of South India Trust Association, represented by its Bishop of Kanyakumari Diocese and both the church and the Diocese are unincorporated bodies, that the defendants are on the whole are christian community and so the Court's permission to institute the suit should have been obtained under order 1 Rule 8 of C.P.C and that since the said condition was not complied with, the suit is not maintainable and thereby the decree passed in the case is a nullity and when the question came to be considered by the Court in the E.P., the Petitioners 3 to 5 who are few individual worshippers in the church contended that they cannot be impleaded as such and the plaintiffs ought to have instituted a suit in the representative capacity. The learned Subordinate Judge, Kuzhithuri rejected the execution application without any reasons. The order on the application only show as "orders pronounced. In the result, the application is rejected. No costs". When the learned counsel for the petitioners was questioned by this Court as to whether there was any speaking order, he replied in the negative. 4. Even in the Written Statement, it is pleaded that the plaintiffs are incompetent to file the suit representing all the members of the. In the counter filed by the petitioners in the execution petition, they have averred that the suit is not a representative suit filed by the defendants. 5. The learned counsel for the petitioners Mr. K. Sreekumaran Nair contended that the suit filed against unincorporated bodies is nothing but a suit against the christian community and hence it should have been filed in the representative body getting the permission of the Court under Order 1 Rule 8 of CPC which is mandatory. 5. The learned counsel for the petitioners Mr. K. Sreekumaran Nair contended that the suit filed against unincorporated bodies is nothing but a suit against the christian community and hence it should have been filed in the representative body getting the permission of the Court under Order 1 Rule 8 of CPC which is mandatory. In support of his contention, the learned counsel for the petitioners relies upon a Division Bench Judgment of this Court in the case of The Executive Committee of the Synod Church of South India .vs. Rt. Rev. Dr. V. Devasahayam(DB) reported in 2009(5) CTC 398 , wherein the learned Judges have observed as follows: "Above all, the suit is laid against the Executive Committee of the Synod, Church of South India, the first defendant and against the Madras Diocesan Council CSI as the third defendant, and the reliefs are sought against those defendants. It is not in controversy that those defendants are unincorporated bodies and are not legal persons. Thus, the suit is filed against the Christian community represented by the defendants who are unincorported bodies and hence the Suit itself is not maintainable without getting permission under Order 1 Rule 8 of the Code of Civil Procedure. For instituting a suit in a representative capacity of filing a suit against a representative body, the procedure under Order 1 Rule 8 of CPC has to be complied with. The Apex Court in a case reported in Kalyan singh .vs. Smt. Chhori, 1990(1) SCC 266 , has held that for a representative suit, the Court's permission under Order 1Rule 8 of Civil Procedure Code is mandatory. Admittedly, in the instant case, no such permission was sought for. So long as no permission was either applied or granted, it cannot be stated that the Suit is in order. As such the Suit framed is not maintainable." 6. In the earlier case in Rev. Boble Gambeeran .vs. Peter P. Ponnan reported in 1999 1 MLJ 392 , it is observed as follows: “Admittedly, the second defendant is an unincorporated body. A church is also an unincorporated body and a suit against them is not maintainable without getting permission under order 1 Rule 8 Civil Procedure Code. For instituting a suit in a representative body, the procedure under Order 1 Rule 8 Civil Procedure has to be complied with. A church is also an unincorporated body and a suit against them is not maintainable without getting permission under order 1 Rule 8 Civil Procedure Code. For instituting a suit in a representative body, the procedure under Order 1 Rule 8 Civil Procedure has to be complied with. When the church itself is an unincorporated body, it cannot be considered as a legal person. When a separate procedure is provided under Order 1 Rule 8 Civil Procedure Code, without complying with that provision, no suit could be instituted even if the By-laws provide for the same." 7. This Court for the present has not expressed any opinion as to the maintainability of the execution petition or whether the decree is a nullity. It is for the executing Court to decide the question of maintainability of the application after hearing both parties. In the considered view of this Court, the execution application can be taken on file and the same be disposed of after giving sufficient opportunities to both parties. 8. In such view of this matter, there will be a direction to the executing Court to take the execution application on file and dipose it of. 9. In fine, the Civil Revision Petition is disposed of and the learned Subordinate Judge, Kuzhithurai is directed to restore the execution application which was rejected by him on 14.08.2012 to file and to dispose of the same by affording sufficient opportunities to both parties. In the interest of justice, an order of status-quo is passed till the disposal of the execution application filed under Section 47 of C.P.C. Consequently, connected Miscellaneous Petition is closed. No costs.