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2014 DIGILAW 3222 (MAD)

Sundara Vinayagar Kovil v. S. Mookan

2014-09-10

V.M.VELUMANI

body2014
Judgment : 1. This Civil Revision Petition has been filed to set aside the fair and decretal order, dated 10.09.2003, made in E.P.No.259 of 2001 in O.S.No.1181 of 1981, on the file of Principal District Munsif Court, Tirunelveli. 2. The petitioners are the plaintiffs, whereas the respondent is the defendant in the suit in O.S.No.1181 of 1981 on the file of Principal District Munsif Court, Tirunelveli. 3. The petitioners filed the suit for recovery of possession of the suit property; for recovery of arrears of rent; and also for recovery of damages for use and occupation of the plaint schedule property. The suit was dismissed on 10.09.2003. Against the Judgment and Decree of the trial Court, the petitioners have filed A.S.No.46 of 1986 before the District Court, Tirunelveli. The first appellate Court allowed the appeal reversing the Judgment and Decree of the trial Court and decreed the suit as prayed for by the plaintiffs. Aggrieved by the Judgment and Decree of the first appellate Court, the respondent has filed the Second Appeal in S.A.No.41 of 1986 before the Principal Bench of this Court. The said Second Appeal was dismissed on 07.09.1990. The respondent was given time till 31.05.1991, to vacate the suit property on condition that he pays the entire arrears of rent within three months from 07.09.1990 and continue to pay the rent regularly as fixed by the appellate Court. As the respondent did not vacate and deliver possession of the property, the petitioner filed E.P.No.259 of 2001, for recovery of possession. The petitioners Temple was represented by its present Trustees. The respondent filed counter affidavit stating that the Execution Petition is not maintainable, as it is barred by limitation and that the persons, who alleged to be Trustees are not the Trustees of the Temple and they have no right to file the Execution Petition. Further, the respondent is not a tenant in respect of the suit property and only the Hindu Primary School is the tenant and the respondent is the Correspondent of the School. The Correspondent of the School is not a party in any of the proceedings. Unless the School is also impleaded or the respondent is sued as Correspondent of the School, the decree cannot be executed against the School. The Correspondent of the School is not a party in any of the proceedings. Unless the School is also impleaded or the respondent is sued as Correspondent of the School, the decree cannot be executed against the School. The respondent further contended that he has renovated the School building and has put up the superstructure in the vacant site taken on lease from the then Temple authorities on a cost of Rs.50,000/-. The respondent is entitled to the Tamil Nadu City Tenants Protection Act as applicable to the petition scheduled premises. On these pleadings, the learned Judge considered whether the petitioners are entitled to recovery of possession under Order 21 Rule 35 of C.P.C. The learned Judge has taken note of Ex.A1, dated 09.03.1994, wherein the present persons, who claimed to be trustees were appointed as Trustees. But the learned Judge dismissed the E.P. on the ground that the present Trustees were appointed only to collect the rents from the property belonging to the Temple and that they do not have any other right. Against the order dated 10.09.2003, the present civil revision petition is filed. 4. Heard Mr.S.P.Maharajan, learned counsel appearing for the revision petitioners. Though notice was served on the respondent and his name is printed in the cause list, he has not chosen to appear either in person or through counsel. 5. The learned counsel for the petitioners reiterated the averments made in the Execution Petition and submitted that as per Ex.A1, the present Trustees are not entitled to discharge all the duties of the Trustees of Temple to safeguard the interest of the Temple. The learned counsel for the petitioners also contended that the present Trustees are successors in interest of earlier Trustees. The Management of the Temple cannot be carried out without Trustees. The collection of rent from the tenants of the property is only one of the duties of the Trustees. As a Successor in interest, the Trustees are entitled to discharge all the duties of the Temple. The Management of the Temple cannot be carried out without Trustees. The collection of rent from the tenants of the property is only one of the duties of the Trustees. As a Successor in interest, the Trustees are entitled to discharge all the duties of the Temple. For this proposition, the learned counsel for the petitioners relied on the following Judgments: (i) Coimbatore Athupalam Shafia Ahalui Sunnath Jamath v. Noyyal River Sulthan Awalia Dargha Wakf [2012 (1) MWN (Civil) 806], wherein in paragraph No.4, it has been held as follows:- "4 .Reading of Section 146, C.P.C. makes it clear that where any proceeding is taken by or against any person then the proceedings may be taken by or against any person claiming under him. In this case, the decree-holder Wakf filed the Execution Petition by the person who claims to be the Muthavali and his claim was also subsequently ratified by the Wakf Board. Therefore, as per Section 146 of C.P.C. any one can represent the decree-holder to execute the decree. Further as per the definition of Muthavali under the Wakf Act defined under Section 3(i) any person for time being managing or administering any Wakf or Wakf property can also be claimed to be Muthavali. The said S.M.Mehaboob Basha has administered the Wakf and filed Execution Petition and therefore, he is entitled to file the same. The said S.M.Mehaboob Basha representing the Wakf as the present Muthuavali filed E.P. and that was rightly considered by the Lower Appellate Court and the E.P. was allowed. Hence I do not find any merit to interfere with the order of the Court below." (ii) Rajamani Gurukkal v. Mrs.Rama & another [ 2012 (2) LW 250 ], wherein in paragraph No.8, it has been held as follows:- "8. To appreciate the contention of the learned Counsel for the Revision Petitioner that the Execution Petition was not properly filed by the proper person and it is against the provisions of Order 21, Rules 11 and 16 of C.P.C., we will have to see the provision of that Rules. As per Order 21, Rule 11 (2) of C.P.C., every Application for the execution of a decree shall be in writing, signed and verified by the Applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. As per Order 21, Rule 11 (2) of C.P.C., every Application for the execution of a decree shall be in writing, signed and verified by the Applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. According to me, it is not necessary that the Execution Petition must be signed and verified by the Petitioner and it is sufficient if the same is signed by some other person who proved to the satisfaction of the Court about the acquaintence of the facts of the case and such person is also entitled to sign and verify the Execution Petition. In this case, admittedly the Plaintiffs in O.S. No. 192 of 1998 are one Rama and T.V.V.P.P. Thirumaligai Sishyal Trust represented by its Managing Trustee-P.Rajagopalan. Therefore, the parties to the Suit are Mrs. Rama and the Trust and the Trust was represented by the Managing Truestee one Rajagopalan at the time of filing of the Suit and at the time of filing of the Execution Petition the Trust was represented by the Managing Trustee R.Venkatesh by virtue of the special resolution passed by the Trustee. Therefore, according to me, there is no change in the name of the Plaintiffs and the 1st Plaintiff remains the same and the 2nd Plaintiff was represented by one Managing Trustee during the trial and was represented by another Managing Trustee at the time of Execution Petition. Therefore, when there is no change in the name of the parties the provision of Order 21, Rule 11(2) of C.P.C., has not been contravened by filing the Execution Petition by the Plaintiffs and there is no violation of Order 21, Rule 11(2) of C.P.C. Similarly, Order 21, Rule 16 of C.P.C., will come into operation when the interest of any decree-holder in the decree is transferred by assignment in writing or by operation of law in favour of another person and when the transferee wants to file execution he has to seek the leave of the Court and notice of such Application shall be given to the transferor and the judgment-debtor and the decree shall not be executed until the Court has heard their objection to its execution. In this case, there is no question of transfer of decree either by assignment or by operation of law and as stated supra the Decree holder remains the same namely the Trust and the person who represented the Trust has changed by virtue of the resolution. Therefore, there is no need to get permission of the Court for filing the Execution Petition on behalf of the Trust by the successor in interest." 6. From the above Judgments, it is clear that the present Trustees are entitled to discharge all the duties of Trustees of the Temple. Therefore, the learned Judge erred in holding that the present Trustees can collect only rents from the tenants of the Temple and that they are not entitled to file any Execution Petition for recovery of properties belonging to the Temple. By this order, the learned Judge failed to exercise the power conferred on him properly and committed irregularity, which warrants interference by this Court. Therefore, the order of the learned Judge is liable to be set aside. 7. This Court, by the order dated 07.09.1990, in S.A.No.41 of 1986 granted time to the respondent till 31.05.1991, to deliver the vacant possession of the suit property to the petitioners. Till date, the respondent has not delivered vacant possession. 8. In the result, this civil revision petition is allowed and the impugned order is set aside and the E.P. is ordered as prayed for. No costs. Consequently, connected miscellaneous petition is closed. It is open to the petitioners to take appropriate steps for recovery of the property belonging to the Temple including seeking police protection for the said purpose.