IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 OP(C).No. 541 of 2010(O) ------------------------ PETITIONERS/PLAINTIFFS: -------------------- 1. M.VENKATAKRISHNA KALLURAYA,AGED 77 YEARS S/O.LATE VASUDEVA KALLURAYA,KEESHANTI BY PROFESSION, RESIDING AT MELINAMANE HOUSE, MADHUR VILLAGE, KASARGODE DISTRICT. 2. M.VASUDEVA KALLURAYA, AGED 70 YEARS, S/O.LATE VISHNU KALLURAYA,KEESHANTI BY PROFESSION, RESIDING AT MELINAMANE HOUSE, MADHUR VILLAGE, KASARGODE DISTRICT. BY ADV. SRI.JAWAHAR JOSE RESPONDENTS/DEFENDANTS: ------------------------- 1. THE COMMISSIONER,HR & CE (ADMINISTRATION OFFICE AT CIVIL STATION, KOZHIKODE-673020. 2. THE DEPUTY COMMISSIONER, HR & CE (ADMINISTRATION OFFICE AT CIVIL STATION, KOZHIKODE-673020. 3. THE EXECUTIVE OFFICER, REPRESENTING SRI.MADANANTHESHWARA VINAYAKA TEMPLE, MADHUR, KASARGODE DISTRICT-671 121. ADV. SRI.K.MOHANAKANNAN,SC,MALABAR DEVASWOM FOR R1 & 2 SRI. K G GOURISHANKAR RAI FOR R3 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON the SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.541 of 2010 --------------------------------------- Dated this 10th day of December, 2010 JUDGMENT Plaintiff in O.S.No.12 of 2004 of the court of learned Additional District Judge (Adhoc-I), Kasaragod is the petitioner before me challenging Ext.P4, judgment dismissing the suit for default for the reason that as directed, petitioner did not take steps to implead the Malabar Devaswom Board (for short, "the Board”) as a party to the suit. That judgment is under challenge. Learned counsel for petitioner contends that impleadment of the Board was not required in view of Sec.8A of the Madras Hindu Religious and Charitable Endowments Act, 1951 (for short, "the Act”). It is also submitted by learned counsel that in the circumstances, petitioner does not want to implead the Board as a party to the proceeding but, for non impleadment, the court below could not have dismissed the suit for default. It is pointed out by learned counsel that though a decree has been drawn up following dismissal of the suit it cannot be treated as a “decree” since dismissal for default does not come within the purview of a 'decree'. Learned counsel contends that under Sec.62(2) of the Act an appeal is provided only against a decree. In the present O.P(C).No.541 of 2010 : 2 : case there being no decree legally, no appeal is maintainable and hence this original petition is preferred. It is pointed out by learned counsel that none of parties to the proceeding had raised a contention regarding non impleadment of Board as a party. I have heard learned counsel for respondent Nos.1 and 2. 2. It is seen that suit has been dismissed for default for the reason that the Board has not been impleaded. According to the petitioner, it is not necessary to implead the Board. Assuming that petitioner does not want to implead the Board, a dismissal of the suit for default was not warranted. The court below has to dispose of the suit on merit. It is also contended by learned counsel for petitioner that in view of Sec.6(6) of the Act, the court competent to entertain the suit is the court of subordinate Judge, transfer of the case to the court of learned District Judge itself is not proper and the suit has to be send back to the court of Subordinate Judge. I make it clear that petitioner can urge that contention also before the learned Additional District Judge. Resultantly this petition is allowed and Ext.P4, judgment is set aside. The suit is remitted to the court of learned Additional District Judge (Adhoc-I), Kasaragod which shall hear all parties on their contention and take appropriate decision in the matter. (THOMAS P JOSEPH, JUDGE) Sbna/-