THE HON'BLE SRI JUSTICE K.G. SHANKAR
CRP No.5224 of 2005
06.01.2012
Kamatam Sangalappa and 2 others
Kapadam Sngalappa and 6 others
Counsel for the petitioner: K.G. Krishna Moorthy
Counsel for the Respondents: J. Ugra Narasimha N. Aswartha Narayana for R-7
? Cases referred:
1. AIR 1966 SC 153
2. AIR 1978 SC 1341
3. AIR 1984 SC 1894
4. AIR 1986 SC 446
5. AIR 1987 SC 1782
6. (1998) 7 SCC 383
7. (2002) 6 SCC 1
8. AIR 2007 SC 1103
9. AIR 1963 SC 698
10. (2004) 5 SCC 1
11. AIR 1932 Privy Council 165
12. (1899) 22 ILR Mad. 68 (at p.80)
13. (2010) 9 SCC 642
14. 1988 (1) ALT 689
15. (2001) 7 SCC 573
THE HON'BLE SRI JUSTICE K.G. SHANKAR
C.R.P.No.5224 of 2005
Date: 06.01.2012
Between:
Kamatam Sangalappa,
R/o. Yerrayapalli Village, Bathalapalli Mandal,
Anantapur District,
and 2 others ... Petitioners/
Judgment debtors
AND
Kapadam Sangalappa,
R/o. Gangalakunta Village,
Anantapur District,
and 6 others
... Respondents/
Decree holders
THE HON'BLE SRI JUSTICE K.G. SHANKAR
C.R.P.No.5224 of 2005
ORDER:
The revision is continuation of age-old lis in O.S.No.15 of 1933 on the file of
the Sub-Judge, Anantapur. E.P.No.59 of 2000 was laid by the alleged decree
holders in E.P.No.15 of 1933. The dispute revolves round Kapadam families on the
one side and Kamatam families on the other side. Kapadam families are residents
of Gangulakunta village. Kamatam families reside in Yerrayapalli village. The
dispute more or less is a dispute between Gangulakunta and Yerrayapalli
villages. Lord Sangalappa is the common deity of the Kapadam sect of
Gangulakunta and Kamatam sect of Yerrayapalli. Both the people belong to Koraba
community, which is said to be a herding community in Anantapur District.
2. This revision is loaded with questions of law such as question of
limitation, maintainability of the revision under Section 115 of the Civil
Procedure Code (CPC, for short) and the locus standi of the decree holders to
lay the execution petition. It is, however, necessary to know the outlines of
the case.
3. Gangulakunta and Yerrayapalli villages have their own temples. However,
they have the custom of exchanging or rotating the paraphernalia periodically.
The revision is laid by Kamatam sect of Yerrayapalli questioning the order in
E.P.No.59 of 2000. Kapadam family of Gungulakunta laid the execution petition
as the decree holders, arraying the Kamatam family as the judgment debtors.
However, O.S.No.59 of 1933 was laid by the Kamatam family against Kapadam
family.
The parties shall be referred to hereinafter as they are arrayed in E.P.No.59 of
2000 as decree holders and judgment debtors.
4. As already pointed out, there is a very long legal background for
this case. The judgment debtors initially laid O.S.No.486 of 1927 on the file of
the District Munsif Court, Anantapur. It was a suit for custody of pooja
articles of insignificant value but of extraordinary sentimental and religious
implications. The property in respect of which O.S.No.486 of 1927 was laid more
or less is identical with the E.P. schedule property, such as bronze horses
etc., including the idols of Lord Sangalappa Swamy.
5. The decree holders resisted the suit. The suit ultimately was
dismissed. An appeal in A.S.No.114 of 1928 was preferred before the District
Judge, Anantapur. The appeal was also dismissed. In the appeal, the learned
District Judge made an observation that a suit can be laid in the representative
capacity under Section 92 CPC as a scheme suit. Subsequently, O.S.No.1 of 1931
was laid by the judgment debtors in the District Court, Anantapur. It was later
transferred to the Subordinate Judge, Anantapur and was renumbered as O.S.No.15
of 1933. O.S.No.15 of 1933 was the suit laid in terms of the observations in
A.S.No.114 of 1928 on the file of the District Court, Anantapur.
6. While the suit was pending before the Sub-Court, Anantapur, apparently
wise counsel prevailed over the parties. The rival groups entered into a
compromise. It was observed that the decree holders had been performing pooja
till the date of compromise and had been meeting the expenditure for performing
pooja.
The decree ordained that the judgment debtors should pay a sum of ` 2,000/-
towards their half share of pooja expenditure.
7. The compromise further recorded that the decree holders and the judgment
debtors should appoint two trustees each who should look after the performance
of pooja and other activities and account to both sides. Clause 2 of the
compromise envisaged that the idols of the God should be installed for six
months at Yerrayapalli and for the remaining six months at Gangulakunta in a
year. Apart from that each sect should lead the performance of poojas for three
months at a time to be taken over by the other side for three months thereafter
to be followed once again by the first side for another three months, so on and
so forth.
8. Hopefully, the dispute had a quietus with the compromise decree. However,
troubles erupted. According to the decree holders, Kamatam sect of judgment
debtor refused to rotate the paraphernalia in 1999, so much so, it became
necessary for Kapadam sect to file E.P.No.59 of 2000 as decree holders.
9. This is not the end of the matter.
The judgment debtors laid counter initially in E.P.No.59 of 2000 and later
attempted to amend the same. They laid E.A.No.686 of 2001 in E.P.No.59 of 2000.
When E.A.No.686 of 2001 was dismissed, the judgment debtors preferred
C.R.P.No.2777 of 2002. It was the fist revision in the series of cases in this
lis. The orders in the revision allowed the judgment debtors to amend the
counter. E.A.No.686 of 2001 was remitted to the execution Court. A specific
direction, however, was issued to the execution Court in C.R.P.No.2777 of 2002
that the execution Court should frame a point regarding the maintainability of
the E.P. and decide the same.
10. On the basis of the orders in C.R.P.No.2777 of 2002, a preliminary issue
was framed regarding the maintainability of the execution Court. The execution
Court held that the E.P. was maintainable, through orders dated 14.10.2003.
Then arose the second revision in C.R.P.No.6055 of 2003 laid by the judgment
debtors once again. The revision in C.R.P.No.6055 of 2003 was dismissed on
12.04.2005.
11. Three questions were raised in C.R.P.No.6055 of 2003 viz., i) whether the
E.P. was barred by limitation; ii) whether the decree holders can execute the
decree; and iii) whether Section 42 of the Andhra Pradesh Charitable and Hindu
Religious Institutions and Endowments Act, 1987 (Endowments Act, for short) bars
the jurisdiction of the Civil Court. The High Court held that the execution
petition was maintainable in view of Section 9, C.P.C. It was also held in
C.R.P.No.6055 of 2003 that Section 42 of the Endowments Act did not oust the
jurisdiction of the execution Court. The question of limitation and the
competence of the decree holders to execute the decree were left open to the
execution Court to decide. Inter alia, it was observed in C.R.P.No.6055 of 2003
that the terms of compromise in O.S.No.15 of 1933 were not inconsistent with
Section 42, Endowments Act.
12. The case then came up before the execution Court. As rightly
submitted by Sri J. Ugra Narasimha, learned counsel for the decree holders, the
execution Court conducted E.P.No.59 of 2000 like a trial.
It recorded as many as five points for consideration, recorded the evidence of
PW.1 and RW.1 and marked Exs.A.1 & A.2 and Ex.B.1. The E.P., however, was
allowed. The judgment debtors were directed to return the E.P. schedule
articles to the decree holders within one month from the date of the order,
failing which warrant under Order XXI Rule 31 CPC was directed to be issued for
the seizure of the E.P. schedule articles. Assailing the same, the present
revision is laid by the judgement debtors.
13. I may make it clear that I have been using the terms, judgment
debtors and the decree holders for the purpose of convenience only. Kapadam
family of Gangulakunta, who are the defendants in O.S.No.15 of 1933, laid the
E.P. describing themselves as decree holders. They were arrayed as defendants
in O.S.No.15 of 1933. Kamatam sect of Yerrayapalli, who are described as
judgment debtor in E.P.No.59 of 2000, laid O.S.No.15 of 1933. In other words,
the plaintiffs are arrayed as judgment debtors and the defendants are arrayed as
decree holders.
14. In fact, the confusion does not end there. None of the decree holders and
the judgment debtors as arrayed in E.P.No.59 of 2000 was a party in O.S.No.15 of
1933. It would appear that the then heads of the family are no more. One of
the grounds urged by Sri K.G. Krishna Murthy, learned counsel for the revision
petitioners/judgment debtors is that the present E.P. is not maintainable by the
present decree holders. I shall examine this question at the appropriate time.
I referred to this contention to point out that none of the original parties to
O.S.No.15 of 1933 is a party to the present revision.
15. The following questions arise for consideration:
i) Whether this revision is maintainable u/s.115 CPC?
ii) Whether the execution petition is barred by limitation?
iii) Whether the decree holders have locus standi to lay the execution petition?
and
iv) What is the appropriate relief?
Question No.(i):
16. This very revision was disposed of by this Court on 22.12.2006. The High
Court unfortunately took the revision in a lighter vein. While the tempers
between the two sects of Kuruba reached the boiling point, the High Court
considered that as the dispute effects large number of people hailing from
different sects, it would be desirable for the Lok Adalat to settle the dispute
amicably after a detailed discussion, deliberations and interaction with rival
claimants. This court disposed of the revision and referred the case to the Lok
Adalat, Anantapur District Unit with a direction to the Presiding Officer and
Member of the Lok Adalat to go into the rival contentions and resolve the
dispute. It is obvious that the dispute between the rival groups cannot be
resolved by amicable understanding where emotions have been dominating both
groups. The learned Secretary, District Legal Services Authority, Anantapur
wrote back to the this Court that the attempt on the part of the Lok Adalat to
settle the dispute did not succeed, so much so, the case came up before me once
again for fresh consideration.
17. Sri J. Urga Narasimha, learned counsel for the decree holders submitted
that the revision is not maintainable and that the same deserves to be dismissed
in limini. On the other hand, Sri K.G. Krishna Murthy, learned counsel for the
judgment debtors advanced the view that the revision is perfectly maintainable.
18. It may be noticed that this revision was laid u/s.115 CPC and not under
Article 227 of the Indian Constitution. Sec.115 CPC reads:
"115. Revision:--- (1) The High Court may call for the record of any case which
has been decided by any Court subordinate to such High Court and in which no
appeal lies thereto, and if such subordinate Court appears---
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity,
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any
order made, or any order deciding an issue, in the course of a suit or other
proceeding, except where the order, if it had been made in favour of the party
applying for revision, would have finally disposed of the suit or other
proceedings.
(2) The High Court shall not, under this section, vary or reverse any decree or
order against which an appeal lies either to the High Court or to any Court
subordinate thereto.
(3) A revision shall not operate as a stay of suit or other proceeding before
the Court except where such suit or other proceeding is stayed by the High
Court."
19. The learned counsel for the judgment debtors contended that the
execution Court exercised the jurisdiction, which did not vest in it (on account
of the bar of limitation and the principles of locus standi), that in the
alternative, the execution Court acted perversely leading to illegality and
material irregularity in exercising its jurisdiction and that the revision
consequently is maintainable u/s.115 (1) CPC.
20. I may refer to the march of law with reference to the cases relied upon by
both sides.
21. In Pandurang Dhondi Chougule v. Maruti Hari Jadhav1, the Supreme Court re-
examined Sec.115 CPC. Indeed, after 1977 amendments and 2002 amendments to CPC,
the scope of Sec.115 CPC had drastically been narrowed down. This decision of
the Supreme Court was pre-amendment of Sec.115 CPC scenario. The Supreme Court
observed in para 10:
"The provisions of S.115 of the Code have been examined by judicial decisions on
several occasions. While exercising its jurisdiction under S. 115, it is not
competent to the High Court to correct errors of fact, however gross they may
be, or even errors of law, unless the said errors have relation to the
jurisdiction of the Court to try the dispute itself. As Cls. (a), (b) and (c)
of S.115 indicate, it is only in cases where the subordinate Court has exercised
a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction
so vested, or has acted in the exercise of its jurisdiction illegally or with
material irregularity that the revisional jurisdiction of the High Court can be
properly invoked. It is conceivable that points of law may arise in proceedings
instituted before subordinate Courts which are related to question of
jurisdictions. It is well-settled that a plea of limitation or a plea of re
judicata is a plea of law which concerns the jurisdiction of the Court which
tries the proceedings. A finding on these please in favour of the party raising
them would oust the jurisdiction of the Court, and so, an erroneous decision on
these pleas can be said to be concerned with questions of jurisdiction which
fall within the purview of S. 115 of the Code. But an erroneous decision on a
question of law reached by the subordinate Court which has no relation to
questions of jurisdiction of that Court, cannot be corrected by the High Court
under S. 115."
22. The learned counsel for the judgment debtors contended that where the
judgment debtors contend that the order passed by the execution Court is not
sustainable on account of the bar of limitation and also on account of the
absence of locus standi to the decree holders, the revision, which arises these
questions of law, is maintainable. The Supreme Court observed that such
questions, which oust the jurisdiction of the Court, can be assailed in a
revision on the ground that the order in question was an erroneous decision.
23. In Sher Sing v. Joint Director of Consolidation2, Section 48 of the Uttar
Pradesh Consolidation of Holding Act came up for consideration. The Supreme
Court held that Sec.48 of the said Act was in pari materia with Sec.115 CPC. So
holding, the Supreme Court observed that the revisional jurisdiction of the High
Court was confined to cases of illegal or irregular exercise or non-exercise or
illegal assumption of the jurisdiction by the subordinate courts and that if the
subordinate court possessed jurisdiction to decide the matter, it could not be
said that the subordinate courts exercise the jurisdiction illegally or with
material irregularity even if such subordinate court decided the matter wrongly.
The Supreme Court clarified that it would not be open to the High Court u/s.115
CPC to correct errors of fact or even errors of law unless the errors have
relation to the jurisdiction of the court to try the dispute itself. It is the
contention of the learned counsel for the decree holders that the revisional
Court cannot go into fact finding exercise and that the present revision is not
maintainable. It may be noticed that the Supreme Court observed in this case
that the alleged errors committed by the subordinate court must be related to
the jurisdiction of the court to try the dispute itself for the revisional Court
to entertain the revision. The judgment debtors, who laid this revision, have
specifically taken the plea that the execution court had no jurisdiction to
entertain the execution application as the same was barred by limitation and
also as the decree holders had no locus to file the execution petition. Thus,
the alleged error on the part of the execution court was with reference to the
jurisdiction of the execution court. The decision in the cited cases,
therefore, does not debar the revisional jurisdiction of this court to entertain
the present application.
24. In M/s. Bhojraj Kunwarji Oil Mill and Ginning Factory v. Yograjsinha
Shankersinha Parihar3 the respondents obtained a decree for possession against
the appellants. The decree for eviction was sought to be executed. The
possession of the property was delivered to the respondents. The appellants,
subsequently, sought for their re-induction into the possession of the property.
As there was delay in filing application u/s.17 of the Bombay Rents, Hotel and
Lodging House Rates (Control) Act, 1947, the trial court condoned the delay in
filing the petition. In the revision arising therefrom, the High Court held
that the delay was not satisfactorily explained. The delay consequently was not
condoned. The aggrieved party preferred civil appeal by special leave before the
Supreme Court. Inter alia, the revisional powers of the High Court came up for
consideration in the appeal before the Supreme Court. The Supreme Court held
that if the trial court had jurisdiction to condone the delay, there was no
material to hold that there was no impropriety in exercising the said
jurisdiction. The approach of the High Court in interfering with the order of
the trial court in the condonation of the delay was criticised by the Supreme
Court. The learned counsel for the decree holders contended that the revisional
court has no jurisdiction to interfere with the execution order. I am afraid
that the contention cannot be countenanced where questions of law were raised by
the judgment debtors before the execution court and where the execution court
erroneously disallowed the questions of law raised by the judgment debtors.
25. In Manick Chandra Nandy v. Debdas Nandy4, the Supreme Court clarified that
the exercise of the revisional jurisdiction was confined to the questions of
jurisdiction. The Supreme Court pointed out that in a first appeal, the
appellate court was free to decide all questions of law and fact that arises in
the case and that in the exercise of the revisional jurisdiction, the High
Court, however, was not entitled to re-examine and
re-assess the evidence on record and substitute its own findings on facts for
those of the subordinate court.
The learned counsel for the decree holders contended that assuming that the
order of the execution court was incorrect, the same cannot be interfered with
in exercise of the powers u/s.115 CPC. I am afraid that the contention of the
learned counsel for the decree holders cannot be countenanced. Where the
controversy is relating to the very jurisdiction of the execution court,
erroneous or alleged erroneous findings can be questioned before the revisional
court, in view of the decisions already cited.
26. The learned counsel for both sides placed reliance upon further decisions
in support of their respective cases.
27. In Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri5, it was observed
that the fact that the High Court could have taken a different view from the
findings adopted by the trial Court would not entail the aggrieved party to
invoke the revisional jurisdiction.
28. It was observed by the Supreme Court in Patel Valmik Himatlal v. Patel
Mohanlal Muljibhai6 that mere fact that a different view was possible on re-
appreciation of the evidence was not a ground for the High Court to substitute
its own findings in exercise of the revisional jurisdiction.
29. In Nalakath Sainuddin v. Koorikadan Sulaman7, it was held that once
a revision is entertained by the High Court, the limitation that operates would
be that the order or proceedings sought to be scrutinized must be from a
subordinate authority. This question, however, deserves to be considered
separately.
30. It was held in G.L. Vijain v. K. Shankar8 that the revisional jurisdiction
more or less was identical with the appeal jurisdiction.
31. Way back in 1961, in Hari Shankar v. Rao Girdhari Lal Chowdhury9, the
Supreme Court recognized the distinction between the appeal and the revision.
The Supreme Court held that the distinction was real.
It pointed out that u/s.115 CPC, the powers of the High Court are limited to
examine whether there had been an assumption of jurisdiction where none existed
or where refusal to exercise jurisdiction where it did and that Section 115 CPC
did not apply to other cases. Be that as it may, it may be noticed that the
judgment debtors contended that the trial Court exercised jurisdiction which it
did not possess and that a revision, therefore, would lie.
32. In Tirupati Balaji Developers (P) Ltd., v. State of Bihar10, it was
held thus in para 11:
"The very conferral of appellate jurisdiction carries with it certain
consequences. Conferral of a principal substantive jurisdiction carries with it,
as a necessary concomitant of that power, the power to exercise such other
incidental and ancillary powers without which the conferral of the principal
power shall be rendered redundant. As held by their Lordships of the Privy
Council in Nagendra Nath Dey v. Suresh Chandra Dey11 (Sir Dinshaw Mulla speaking
for the Bench of five), an appeal is an application by a party to an appellate
Court asking it to set aside or revise a decision of a subordinate Court. The
appeal does not cease to be an appeal though irregular or incompetent. Placing
on record his opinion, Subramania Ayyar, J. as a member of Full Bench (of five
judges) in Chappan v. Moidin Kutti12, stated inter alia that appeal is "the
removal of a cause or a suit from an inferior to a superior Judge or court for
re-examination or review". According to Wharton's Law Lexicon such removal of a
cause or suit is for the purpose of testing the soundness of the decision of the
inferior Court. "In consonance with this particular meaning of appeal,
'appellate jurisdiction' means "the power of a superior Court to review the
decision of an inferior Court".
"Here the two things which are required to constitute appellate jurisdiction,
are the existence of the relation of superior and inferior court and the power
on the part of the former to review decisions of the latter. This has been well
put by Story:
"The essential criterion of "appellate jurisdiction is, that it revises and
corrects the proceedings in a cause already instituted and does not create that
cause.
In reference to judicial tribunals an appellate jurisdiction, therefore,
necessarily implies that the subject-matter has been already instituted and
acted upon by some other Court, whose judgment or proceedings are to be
revised," (Section 1761, Commentaries on the Constitution of the United
States)."
33. The Supreme Court very recently was more elaborate with reference to
the principles of appeal in James Joseph v. State of Kerala13. The Supreme
Court held:
"We may therefore formulate the following principles with reference to appeals:
(i) An appeal is a proceeding where an higher forum reconsiders the decision of
a lower forum, on questions of fact and questions of law, with jurisdiction to
confirm, reverse, modify the decision or remand the matter to the lower forum
for fresh decision in terms of its directions.
(ii) The appellate jurisdiction can be limited or regulated by the legislature
and its extent has to be decided with reference to the language employed by the
statute conferring the appellate jurisdiction.
(iii) The width of jurisdiction or the limitations on jurisdiction with
reference to an appeal, does not depend on whether the appeal is a first appeal
or a second appeal, but depends upon the limitations, if any, placed by the
statute conferring the right of appeal.
(iv) If the Legislature's intention is to limit the jurisdiction in an appeal,
it may indicate such limits in the provision providing for appeal.
Alternatively, it may expressly or impliedly incorporate the provisions of
Section 100 of the Code, into the provision for appeals.
(v) Generally statutory provisions for appeals against original orders or
decrees (that is, first appeals) will not have any limitations and therefore
rehearing on both law and fact is contemplated; and statutory provisions for
appeals against appellate orders (that is, second appeals) will be restricted to
questions of law. But such restriction is not on account of any legal principle
that all second appeals should always be with reference to questions of law, but
would depend upon the wording of the statute placing the restrictions upon the
scope of second appeal.
(vi) Where the statute does not place any limitations or restrictions in regard
to the scope and width of the appeal, it shall be construed that the appeal
provides a right of rehearing on law as well as facts. If the Legislature enacts
a self contained provision for second appeals, without any limitation upon the
scope of the second appeal and excludes the possibility of reading the provision
of section 100 of the Code, into such provision, then, it will not be
permissible to read the limitations of Section 100 of the Code into the special
provision."
34. The question, therefore, is whether the present revision is
maintainable or not in the light of the decisions referred to. I had already
pointed out that the judgment debtors raised fundamental question regarding the
jurisdiction of the execution Court in trying to execute the decree. The
questions are pure questions of law, viz., the locus standi and the question of
limitation. They fall within the purview of Sec. 115 CPC as it stands now after
amendments. Consequently, the present revision is maintainable. I would hasten
to add that it is not as though the execution court had no jurisdiction to
entertain the execution petition as the same was barred by limitation and that
the decree holders had no locus standi to lay the execution petition. These
questions are to be considered on merits in this case. Accordingly, the
question No.(i) is answered in favour of the judgment debtors and against the
decree holders, holding that this revision petition is maintainable.
Question No.(iii):
35. The learned counsel for the judgment debtors inter alia contended that
neither the defendants filed the execution petition nor the plaintiffs were
arrayed as judgment debtors, so much so, the execution petition was not
maintainable. He contended that the decree holders were not the defendants
albeit Kapadam family of Gangulakunta were the defendants in O.S.No.15 of 1933.
Similarly, while Kamatam sect of Yerraipalli were the plaintiffs in O.S.No.15 of
1993, none of the plaintiffs was a judgment debtor in this case. It is not even
described in the execution petition that the decree holders and the judgment
debtors are the legal representatives of the deceased-plaintiffs and the
deceased-defendants.
The learned counsel for the judgment debtors contended that the very execution
petition is not maintainable, as it was not laid by the parties to the suit or
their legal representatives.
36. The Gram Panchayat filed CRP MP No.8666 of 2006 under Order 1 Rule 10 CPC
to implead it as seventh respondent in the revision. The proposed party claimed
that the Gram Panchayat has been performing poojas to Sangalappa Swamy temple
situate in Yerraipalli village, that the compromise decree had never been
enforced and that the execution petition was not maintainable. The third party
further contended that the decree holders of Gangulakunta were not entitled to
mange the temple and that the temple had been indeed under the management of the
Gram Panchayat, Sanjeevapuram. Considering that the seventh respondent was an
intervener and a necessary party, CRP MP No.8666 of 2006 was allowed. The Gram
Panchayat, Sanjeevapuram was brought on record as the seventh respondent.
37. Sri N. Aswartha Narayana, learned counsel for the seventh respondent
contended that the seventh respondent, in fact, is the Gram Panchayat for
Yerraipalli also and that the seventh respondent has been managing Sangalappa
Swamy temple. He further contended that in December 2006, Yerraipalli village
passed a resolution that the seventh respondent should perform poojas in the
temple. It is the contention of the learned counsel for the seventh respondent
that in view of the resolution, the seventh respondent took over the
administration of the temple and that neither the decree holders nor the
judgment debtors can interfere with the same.
38. I am afraid that this contention cannot be countenanced. The very power
of the seventh respondent to administer the temple is on account of a resolution
in December, 2006 by Kamatam sect of Yerraipalli.
The seventh respondent, therefore, cannot contend that it acquired right to
administer the temple to the exclusion of the judgment debtors.
39. Further, the rivalry in the present case is between the sects belonging to
Yerraipalli and Gangulakunta. The Gram Panchayat having territorial control
over the Yerraipalli cannot assume jurisdiction over the administration of the
temple and act as though there was no controversy in the case. The controversy
whether the judgment debtors shall hand over the sacred articles and
paraphernalia covered by the E.P. schedule to the decree holders cannot be
answered by holding that the seventh respondent took over the administration of
the temple at Yerraipalli. While the seventh respondent indeed plays a role in
helping the court in arriving at the truth and solution to the problem, I am
afraid that the execution petition cannot be dismissed, more so,
in limini, on the ground that the seventh respondent took over the management of
the temple and that there cannot be any controversy in this regard.
40. The question whether the decree holders are entitled to seek for the
execution of the decree needs to be addressed.
41. It is contended by the learned counsel for the decree holders that the
suit was filed in representative capacity u/s.92 CPC. The decree in O.S.No.15
of 1933 does not show that the suit was a representative suit u/s.92 CPC. The
pleadings in O.S.No.15 of 1933 are not available to consider this aspect.
However, the contention of the decree holders in this regard deserves to be
accepted where the judgment debtors do not deny that they (the judgment debtors)
laid the suit in O.S.No.15 of 1933 u/s.92 CPC. Accordingly, I hold that the
suit was u/s.92 CPC.
42. U/s.92 CPC, two or more persons interested in a religious institute can
lay a suit, inter alia, for the management of the institute. Further, the
learned counsel for both sides drew my attention to Sec.42 of the Endowments
Act. Sec.42 of the Endowments Act has overriding effect on other provisions of
the Act, as observed by this court in L. Laxmana Rao v. Assistant Commissioner
of Endowments, Eluru14. The very scheme of Endowments Act envisages that any
person interested in the religious institution is entitled to approach the court
for redressal. Sec.2 (18) of Endowments Act defines "person having interest" in
a religious institute and other institutions.
43. The learned counsel for the decree holders also contended that Sec.146,
CPC envisages that execution can be initiated against any person claiming
through a person who participated in the proceedings. As rightly submitted by
the learned counsel for the decree holders, these provisions empower the decree
holders to institute the execution proceedings against the judgment debtors.
Whether the decree holders are entitled to the relief claimed by them is a
different issue. Primarily, the judgment debtors cannot resist the execution
petition on the ground that the decree holders do not have locus standi to lay
the execution petition where the suit admittedly was a representative suit
u/s.92 CPC and where the decree holders are persons having interested in the
religious institution, as defined u/s.2 (18) of the Endowment Act. Consequently,
Question No.(iii) is answered in favour of the decree holders and against the
judgment debtors holding that the decree holders have locus standi to seek for
the execution of the compromise decree in O.S.No.15 of 1933.
Question No.(iv):
44. The decree holders seek for the return of E.P. schedule articles
from the judgment debtors. The learned counsel for the judgment debtors
contended that if there is anybody who can seek for the execution of the consent
decree, it is the judgment debtors and not other way round. It may be recalled
that the judgment debtors are the plaintiffs and the decree holders are the
defendants. The consent decree reads that the defendants/decree holders had
been performing pooja till that date meeting the expenditure. The decree
directed the plaintiffs to meet half of the pooja expenditure evaluated at `
2,000/- and that the defendants/decree holders should allow the pooja by the
plaintiffs/judgment debtors by receiving
` 2,000/-. The plaintiffs, consequently, could pay
` 2,000/- to the defendants and demand to permit them to render pooja to the
God. The plaintiffs, however, did not choose to comply with the conditions and
did not pay ` 2,000/- as ordained by clause-1 of the consent decree. As the
plaintiffs did not fulfil the conditions imposed, the plaintiffs were not
entitled to seek the execution of the decree. It is the contention of the
learned counsel for the plaintiffs/judgment debtors that the plaintiffs could
not ask for the execution of the decree and that the defendants also cannot seek
for the execution of the decree, as there is no decree executable by the
defendants.
45. The learned counsel for the defendants/decree holders referred to clause-2
of the consent decree.
The plaintiffs and the defendants agreed to appoint two trustees by each of them
to look after the nitya pooja (daily prays) and accounts. The clause further
contemplates that the idols (perhaps the paraphernalia like wooden horses etc.,)
should be installed for six months at Yerraipalli and for the remaining six
months at Gangulakunta for worship. It is the contention of the decree holders
that the consent decree granted equal rights to the plaintiffs and the
defendants and that the defendants are as much entitled as plaintiffs are to
implement the consent decree. I may point out that clause-2 of the consent
decree conferred equal powers upon the plaintiffs-judgment debtors and
defendants-decree holders to perform pooja, appoint trustees, supervise daily
rituals and maintain accounts apart from rotating idols once in six months
between the two villages. The contention of the learned counsel for the judgment
debtors that the decree can be executed only by the judgment debtors and not by
the decree holders, therefore, is not sustainable.
46. The next contention of the judgment debtors is that the idols and
paraphernalia have been with the decree holders and not with the judgment
debtors so much so the decree holders cannot seek for the execution of the
decree. My attention was drawn to clause-1 of the consent decree. Clause-1 reads
that the defendants-decree holders were performing pooja and were meeting the
expenditure as on the date of the decree. It is the contention of the learned
counsel for the judgment debtors that when the defendants/decree holders were
performing pooja, it is sine quo non that the idols were with the defendants,
lest pooja should not have been possible without the idols. It is the
contention of the learned counsel for the judgment debtors that as the pooja
articles remained with the decree holders, the decree holders cannot seek for
the possession of the idols and paraphernalia and that the execution petition is
not maintainable. On the other hand, the learned counsel for the
defendants/decree holders contends that after the consent decree, the idols and
paraphernalia were rotated between the plaintiffs and the defendants from time
to time till the plaintiffs refused to exchange the paraphernalia in 1999
necessitating the defendants to file the present executing petition.
47. A question of fact arose between the rival contentions. The decree
holders indeed examined the first decree holder while the judgment debtors
examined third judgment debtor in support of their respective cases. The first
and third petitioners in the execution petition deposed in support of their
respective claims.
I am afraid that the evidence of both sides is merely an oath against oath. The
oral evidence of neither side is worthy of preference to the evidence of the
other side. The primary onus in this petition lies on the decree holders to
establish that the judgment debtors violated the decree and that the decree
holders are not entitled to execute the same. The learned counsel for the
judgment debtors contends that the judgment debtors upon whom the initial burden
lies failed to prove that the judgment debtors violated the terms of the decree
and that the judgment debtors, consequently, are not entitled to seek for the
execution of the decree. It is further contended by the judgment debtors that
the idols and paraphernalia are not with the judgment debtors and that it is
impossible for the judgment debtors to return the same, as the E.P. schedule
items are not in possession of the judgment debtors. Inter lia, it is submitted
that over a period of time, the plaintiffs and the defendants set up their own
idols and paraphernalia, so much so, neither the judgment debtors nor the decree
holders looked at the other side to receive the idols for a period of six months
in an year, that each side has its newly procured idols and paraphernalia round
the year and that the execution petition was filed only with the political
vengeance.
48. The learned counsel for the judgment debtors contended that the claim of
the decree holders that the judgment debtors did not part with the idols
including the deity from April 1999 had not been proved.
He further pointed out that PW.1 did not even state that ` 2,000/- was paid by
the judgment debtors to the decree holders for continuous operation of the
decree. As rightly submitted by the learned counsel for the judgment debtors,
there is no evidence that the articles and the idols are with the judgment
debtors. Equally true is the fact that there is no evidence that the judgment
debtors paid ` 2,000/- to the decree holders as ordained through clause-1 of the
consent decree. The learned counsel for the judgment debtors, however,
contended that as the controversy between Yerraipalli and Gangulakunta is
bitter, Gangulakunta people of Kapadam sect would have raised hue and cry, if
the judgment debtors did not comply with the terms of the compromise decree.
49. In fact, Gangulakunta villagers filed execution petition contending that
the judgment debtors violated the terms and conditions of the consent decree.
However, it is the case of the decree holders that the violation occurred in
1999. The question of the decree holders complaining earlier, therefore, did
not arise.
I regret my inability to agree with the contention of the learned counsel for
the judgment debtors that Kapadam sect (of Gangulakunta) would have approached
the court long ago had the judgment debtors violated the decree.
The question of limitation indeed arises in this connection which shall be
answered under question No.(ii). The main dispute is that the idols and the
articles are with the decree holders themselves and that the decree holders,
therefore, cannot execute the decree.
50. The learned counsel for the decree holders contended that there was no
proof that the idols had been with the decree holders. It was recited in
clause-1 of the consent decree that the decree holders were performing pooja
till the date of the decree. I, therefore, agree with the contention of the
learned counsel for the judgment debtors that by the date of the decree on
01.11.1933, the idols were with Kapadam family of Gangulakunta. What transpired
thereafter and whether the two sects had been rotating the idols and other
paraphernaliac articles is anybody's guess, as there was no evidence in this
context. The evidence let in by the decree holders is not sufficient to hold
that the idols and the paraphernalia covered by the schedule to the E.P. are
with the judgment debtors and that the judgment debtors are liable to return the
same to the decree holders by way of rotation.
51. It is the contention of the learned counsel for the judgment debtors that
although the judgment debtors had been performing pooja, it was to the idols
subsequently installed by the villagers and not to the disputed idols. The
learned counsel for the judgment debtors, however, further contended that the
disputed idols as of 1933 were given a go by long ago and that each village
presently has its own deity and accompanying paraphernalia. This contention once
again has no proof. However, it is for the decree holders to show that the
judgment debtors violated the conditions of the decree for the execution of the
decree and not other way round. It may be recalled that the judgment debtors
contended that the decree was never acted upon. One of the instances cited by
the judgment debtors in proof of this contention is that the villagers did not
appoint two trustees on each side, as directed by clause-2 of the consent
decree. Indeed, there is no evidence that the decree holders and the judgment
debtors had elected/appointed two trustees each to administer the management of
the temple. I am afraid that the problems encountered leading to the present
execution petition would not have arisen had the decree holders and the judgment
debtors appointed trustees, as directed in the decree.
52. Sri J. Ugra Narasimha, learned counsel for the decree holders states that
both sides have appointed trustees indeed to manage the affairs of the deity.
However, there is no record in support of this claim.
I agree with the contention of the learned counsel for the judgment debtors that
there was no occasion for either village to appoint trustees in terms of clause-
2 of the consent decree.
53. The learned counsel for the judgment debtors contended that although the
execution court examined the objections, findings of the execution court were
perverse and that the revision, therefore, is maintainable. I have already
reached the conclusion with reference to question No.(i) that this revision is
maintainable.
54. The defence of the judgment debtors that Kamatam sect of Yerraipalii did
not pay ` 2,000/- to Kapadam sect of Gangulakunta and did not take custody of
the idols was sought to be countered by the execution court holding that where
the conflict between the parties was so bitter, the judgment debtors would not
have kept quiet without complying the decree. I am afraid that the execution
court was assuming that the consent decree was acted upon without proper proof.
The contention of the decree holders that the decree was acted upon was not
proved and cannot be accepted as an assumption. The trial court did not believe
RW.1 on the ground that RW.1 was not aware of the fact. As already pointed out,
the parties to the execution petition are not parties to the suit. Obviously,
RW.1 (first judgment debtor) could not have been aware what happened in 1933.
The trial court indeed was justified in not placing reliance upon RW.1. The
trial court, however, considered that there was exchange of the idols without
any proof thereof. The learned counsel for the decree holders contended that if
the decree holders were in possession of the idols, there would have been no
need for the decree holders to institute the execution petition. I am afraid
that the decree holders are trying to state that the very filing of the
execution petition is proof of the case of the decree holders. Where the decree
holders failed to prove their case otherwise through cogent evidence, mere
filing of the case does not establish the case of the petition.
I, therefore, consider that there was no evidence to hold that the judgment
debtors violated the terms of the decree and that the decree is executable
against the judgment debtors. Accordingly, question No.(iv) is answered in
favour of the judgment debtors and against the decree holders.
Question No.(ii):
55. The execution petition was filed in 2000.
The decree was passed in 1933. The learned counsel for the judgment debtors
contended that the execution of the decree is barred by time and cannot be
executed now. The learned counsel for the decree holders, on the other hand,
contended that the decree was violated in April, 1999 and that the execution
petition, consequently, was laid in 2000. The execution court considered that
the breach of the terms of the decree occurred in 1999 and that the execution
petition, which was filed within one year thereafter, was perfectly
maintainable. Article 136 of the Limitation Act deals with the execution of the
decree. Article 136 of the Limitation Act provides the period of 12 years for
the execution of any decree or order. The period of 12 years commences from the
date when the decree or order becomes enforceable and that an application for
the enforcement of the execution of a decree granting a perpetual injunction is
not subject to any period of limitation. In V. Hucheswaran v. M/s. Madras
Hardware Mart15 a final decree was passed in a partition suit. The execution
petition was filed beyond 12 years from the date of the decree. The execution
court dismissed the execution petition. The High Court, however, condoned the
delay in filing the execution petition belatedly and remitted the case to the
execution court. The Supreme Court held that the condonation of the delay by
the High Court was sustainable. The learned counsel for the decree holders
contends that the question of executing the decree arises when the judgment
debtors violated the same and that as the judgment debtors violated the decree
in 1999, it became necessary for the decree holders to seek for the execution.
The compromise decree recorded by the trial court is, indeed, not a decree for
perpetual injunction. At the same time, it is not as though the decree is
capable of one time performance.
It is an order, which shall be implemented continuously for all future occasions
from the date of the decree. What is to be executed is the violation of the
decree.
The question of the violation arises when one of the parties to the consent
decree did not abide by the decree. It is the case of the decree holders that
the judgment debtors violated the terms of the decree with effect from
01.04.1999. I wholly agree with the contention of the learned counsel for the
decree holders that the period of limitation commences to run from 01.04.1999
and would run for a period of 12 years. I am constrained to make it clear that
the period of 12 years envisaged by Article 136 of the Limitation Act commences
from the date of violation of the decree and has no reference to the date of the
decree, more particularly so when the decree is not for the recovery of the
money. In that view of the matter, this execution petition is within time and
cannot be dismissed on the ground that it is barred by limitation.
I answer the question No.(ii) accordingly in favour of the decree holders and
against the judgment debtors.
Conclusion:
56. It is found that this revision is maintainable u/s.115 CPC and that the
same is not barred by limitation. It is also found that the decree holders have
locus standi to lay the execution petition. However, it is found on the
circumstances of the case under question No.(iv) that the execution petition is
not maintainable on facts, since the judgment debtors did not violate the terms
of the consent decree. Consequently, this execution petition cannot be ordered.
The execution court unfortunately went by the assumption that the judgment
debtors violated the terms of the decree and proceeded to order for the
execution of the same.
The approach of the execution court is incorrect and is liable to be set aside.
57. Accordingly, the Civil Revision Petition is allowed. The orders in
E.P.No.59 of 2000 in O.S.No.15 of 1933 on the file of the Principal Senior Civil
Judge, Anantapur are hereby set aside. There shall, however, be no order as to
costs.
________________
K.G. SHANKAR, J
Date: 06.01.2012
