IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 CRP.No. 863 of 2008() --------------------- AGAINST THE ORDER DATED 19/11/2008 IN EP 528/05 IN OS.327/1982 of ADDL.SUB COURT, THALASSERY .................... REVN. PETITIONER(S): 1ST RESPONDENT/1ST DEFENDANT: -------------------------------------------------- MANHERIKANDI DAMODARAN, S/O.KANNAN, BUSINESS, AZHEEKODE AMSOM DESOM, P.O.AZHEEKODE, KANNUR DISTRICT. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.KAUSER EDAPAGATH RESPONDENT(S): PETITIONERS-RESPONDENTS 2-4/PLAINTIFFS/DEFENDANTS 7 To 9 ----------------------------------------------------------------- 1. KOOVEN VIJAYAN, RETIRED POLICE CONSTABLE, AZHEEKODE AMSOM DESOM, KANNUR DISTRICT. 2. MAHESWARAN VENUGOPALAN, S/O.KAKKAN, AZHEEKODE AMSOM DESOM, KANNUR DIST. 3. DAIVATHARKANDY KANNAN, S/O.AMBU, AZHEEKODE AMSOM DESOM, AZHEEKKAL P.O., KANNUR DISTRICT. 4. KEECHIPARATH NARAYANAN, S/O.AMBU, -DO-, -DO-. 5. POOCHALI BALAKRISHNAN, S/O.KRISHNAN, AZHEEKODE AMSOM DESOM, AZHEEKKAL P.O., KANNUR DISTRICT. ADV. SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE FOR R1 & 2 SRI.P.G.RAJAGOPALAN FOR R2 SRI.M.GOPIKRISHNAN NAMBIAR FOR R1 & 2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.863 of 2008 -------------------------------------- Dated this the 29th day of November, 2010. ORDER Power of executing court to grant the reliefs it has granted in this case, according to the learned counsel for petitioner in the absence of specific relief granted in that line in the decree is under challenge in this revision at the instance of judgment debtor No.1/defendant No.1. 2. Respondent Nos.1 and 2/plaintiffs filed O.S.No.327 of 1982 for a decree for injunction to restrain petitioner and other defendants including respondent Nos.3 to 5/defendant Nos.7 to 9 from interfering with their right as trustees for management of the temple and conduct of poojas therein. Though the suit was resisted and the trial court dismissed the same, appellate court granted a decree in favour of respondent Nos.1 and 2 as follows: “i. that respondents 1 to 9 (D1 to 9) have no right over the Pambadi Alinkeezhil Temple or its properties also they have no right to manage the same. ii. Respondents are restrained by an order of permanent injunction from interfering with the right of the trustees of the temple to manage the temple and conduct poojas. iii. If the administration and management of the temple and the temple properties are objectionable, the members of the family the tharwad are at liberty to take appropriate action in accordance with law.” Pursuant to that decree respondent Nos.1 and 2 filed E.P.No.37 of 2004 alleging CRP No.863/2008 2 violation of the decree. That execution petition was dismissed holding that no evidence, oral or documentary was produced to show that there was any violation. Later respondent Nos.1 and 2 filed E.P.No.528 of 2005 alleging violation of decree, stating that during the pendency of suit and 'in violation of the decree', amounts, receipts, account books and other valuables belonging to the temple were taken away by petitioner and respondent Nos.3 to 5. In that execution petition they prayed that petitioner and respondent Nos.3 to 5 be directed to return the said articles to respondent Nos.1 and 2. The execution petition was objected on various grounds including that dismissal of E.P.No. 37 of 2004 operated as res judicata against E.P.No.528 of 2005 and that reliefs for return of amounts, books of accounts, etc cannot be granted since no such relief is granted by the decree. Executing court has rejected the contention of petitioner and respondent Nos.3 to 5 placing reliance on the decision in Ajayakumar v. Damayanthi (2004 (2) KLT 48) and held that respondent Nos.1 and 2 are entitled to get those articles. That order is under challenge. 3. Petitioner is not pursuing the contention based on res judicata in view of dismissal of E.P.No.37 of 2004 but argued basing on the relief granted in the decree and prayed for in E.P.No.528 of 2005. Learned counsel submitted that under Rule 32 of Order XXI of the Code of Civil Procedure (for short, “the Code”) a decree for prohibitory injunction could be enforced only when there is a violation of the decree. In the present case, there is no case for respondent Nos.1 and 2 that petitioner or respondent Nos.3 to 5 have removed any article in violation of the decree and even according to them it was pending suit that the CRP No.863/2008 3 articles were allegedly removed by petitioner and respondent Nos.3 to 5. According to the learned counsel, executing court has gone beyond its power in granting reliefs. Learned counsel submits that in the above circumstances by no stretch of interpretation given to Rule 32 of Order XXI of the Code a relief of the nature granted by executing court could be granted to respondent Nos.1 and 2. Learned counsel for respondent Nos.1 and 2 contended that in the nature of relief granted by decree, it is the obligation of petitioner and respondent Nos.3 to 5 to return the articles they have taken away during pendency of the suit and the executing court therefore was justified in granting relief to respondent Nos.1 and 2 for effective enjoyment of the fruits of decree. According to the learned counsel such power is not alien to the executing court and is expressly provided under Sub-rule (5) of Rule 32 of Order XXI of the Code and in particular, explanation added to it by amendment vide Act 22 of 2002 (w.e.f. 01.07.2002). 4. I referred to the decree granted by the appellate court. Now the question is whether executing court was competent to direct petitioner and respondent Nos.3 to 5 to return the articles referred to in column (10) of E.P.No.528 of 2005. No doubt, the decree as it stands does not specifically direct petitioner or respondent Nos.3 to 5 to return the said articles. It is useful to make a reference to the provisions relied on by both sides. Rule 32 of Order XXI of the Code deals with decree for specific performance for restitution of conjugal rights or for an injunction and Sub-rule (5) states that where a decree for the specific performance of a contract or for an injunction has not been obeyed, the court may in lieu of or in addition to all or any of the processes CRP No.863/2008 4 aforesaid, direct that the act required to be done may be done so far as practicable by the decree holder or some other person appointed by the court at the cost of the judgment debtor and upon the act being done the expenses incurred may be ascertained in such manner as the court may direct and may be recovered as if they were included in the decree. Explanation added to Sub-rule (5) states that “for the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.” Dealing with the said provision the learned Single Judge in the decision cited supra has stated in paragraph No.7 that executing court has a duty to make every endeavour to ensure that the decree holder does secure the fruits of the decree. That was a case where police assistance was sought. Regarding power of the court to enforce the decree for prohibitory injunction by directing judgment debtor to do certain acts it was observed that “it is possible now under O.XXI, R.32 to have even decrees for prohibitory injunction enforced to a practicable extent in the same way as decrees for mandatory injunctions.” It was held that “the introduction of the explanation to sub-r.(5) of R.32 reveals the anxiety of the Parliament to ensure that the executing court is able to enforce obedience not only of decrees for mandatory injunctions, but also decrees for prohibitory injunctions.” Another learned Judge of this Court considered the question in Krishnan Namboodiri v. Unnikrishnan Namboodiri (2005 (3) KLT 556). That ofcourse was a case where, in violation of decree for prohibitory injunction the decree holder was forcibly evicted by judgment debtor. In paragraph No.17 learned Judge CRP No.863/2008 5 referred to the scope of Sub-rule (5) of Rule 32 of Order XXI of the Code and the explanation added to it and said that there could be no doubt that sub-rule can be applied and used even in a decree for prohibitory injunction. In paragraph No.19, it was observed that when a specific provision is lacking to meet a particular contingency to enforce a decree or order of the court, it is only just and proper to invoke the inherent power of the court under Section 151 of the Code. In paragraph No.20 it was observed thus: “From the principles of law mentioned above and the facts and circumstances of this case, there can be no doubt that the executing court was not justified at all in denying the relief for delivery of possession on a technical ground that a decree for prohibitory injunction cannot be enforced in the manner prayed for by the decree holder. The decision of the executing court is patently illegal and without jurisdiction which requires to be corrected by this Court in the exercise of jurisdiction under S.115 of the Code of Civil Procedure.” 5. Guided by the above provisions and interpretations I shall consider whether executing court was correct in granting reliefs prayed for in E.P.No.528 of 2005 on the face of absence of specific direction in that way in the decree. Though trial court refused, the appellate court recognised right of respondent Nos.1 and 2 as trustees of the temple to manage its affairs and conduct poojas in the said temple. The appellate court also found that petitioner, respondent Nos.3 to 5 and other defendants have no right over the temple or its properties and that they have no right to manage the same. Further relief CRP No.863/2008 6 granted by the appellate court is that petitioner, respondent Nos.3 to 5 and other defendants are restrained by an order of permanent injunction from interfering with the right of trustees of the temple to manage the temple and conduct poojas. Learned counsel for petitioner pointed out there is no positive declaration of right of respondent Nos.1 and 2. I am unable to agree. When the decree said that petitioner, respondent Nos.3 to 5 and other defendants shall not interfere with the administration and management of the temple by the trustees, it is a recognition of right of the trustees to administer and manage the temple. In otherwords respondent Nos.1 and 2 as trustees are found entitled to manage the temple. 6. When it is stated that respondent Nos.1 and 2 are entitled to manage the temple and conduct poojas it goes without saying that the said right and power of management extents not merely to the temple as such but, its properties as well and whatever that is required to be done by respondent Nos.1 and 2 could be done by them. They are entitled to take and get custody of property of the temple. It is true that as per the case of respondent Nos.1 and 2 it is not after the decree that petitioner, respondent Nos.3 to 5 and other defendants took away the articles referred to in column (10) of E.P.No.528 of 2005. According to respondent Nos.1 and 2 those articles were removed during the pendency of the suit. Since removal of articles was not prior to the institution of the suit, question of respondent Nos.1 and 2 asking any consequential relief pursuant to the declaration prayed for did not arise. 7. I stated that the decree recognised and in a way declared the right CRP No.863/2008 7 of respondent Nos.1 and 2 as trustees of the temple to manage the temple and conduct poojas and that right of management must extent to the properties of temple as well. When the appellate court declared that petitioner, respondent Nos.3 to 5 or other defendants have no right over the temple or its properties, it followed that they are not entitled to be in possession of any property of the temple which at the time of passing of decree they were in possession of. A conjoint reading of the reliefs granted by the decree would follow that petitioner, respondent Nos.3 to 5 or other defendants have no right to be in possession or continue to be in possession of articles belonging to the temple the right for management of which has been found to be within the right of respondent Nos.1 and 2. I am persuaded to think that the relief granted under the decree must be given purposive and pragmatic interpretation so as to advance the cause of justice. If that be so, petitioner and respondent Nos.3 to 5 are not entitled to be in possession of properties of the temple referred to in column (10) of the execution petition. Petitioner and respondent Nos.3 to 5 are bound to handover the said articles to respondent Nos.1 and 2 notwithstanding that the decree does not specifically say so. The power to so direct, I am inclined to think, even in the absence of specific direction in the decree to that effect, is vested with the executing court in view of Sub-rule (5) of Rule 32 of Order XXI of the Code and the explanation attached thereto read in the light of the decisions referred to above and the inherent power of the court to do justice. I do not find reason to interfere with the impugned order. 8. Executing court granted 15 days time for petitioner and respondent CRP No.863/2008 8 Nos.3 to 5 to handover the articles referred to in column (10) of E.P.No.528 of 2005. That time has expired. Having regard to the circumstances petitioner and respondent Nos.3 to 5 are granted one month's time from this day to comply with the order under challenge. Revision Petition is dismissed. I.A.No.2762 of 2008 will stand dismissed. THOMAS P.JOSEPH, Judge. cks