IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WP(C).No. 28190 of 2008(E) -------------------------------------- [OS.NO.116/2000 OF SUB COURT, MAVELIKKARA] .................... PETITIONERS: --------------------- 1. K.G.SURESH KUMAR, PRESIDENT, CHENGANNUR CHINMAYA MISSION EDUCATIONAL CULTURAL AND CHARITABLE TRUST, KALARIYIL HOUSE, KIZHAKKENADA, CHENGANNUR. 2. KOCHANIYAN, SECRETARY, CHENGANNUR, CHINMAYA MISSION EDUCATIONAL CULTURAL AND CHARITABLE TRUST, KALARIYIL HOUSE, KIZHAKKENADA, CHENGANNUR. BY ADVS. SRI.P.GOPAKUMARAN NAIR, SRI.C.S.DIAS, SRI.AJITH MURALI. RESPONDENTS: ------------------------ 1. CENTRAL CHINMAYA MISSION TRUST, SANDEEPANY SADHANALAYA, SAKIVIHAR ROAD, NEAR POWAI PARK, MUMBAI-400 007. 2. CHINMAYA SEVA TRUST, NEERANJALI, BUILDING, ROUND NORTH THRISSUR-680 020. 3. CHINMAYA MISSION EDUCATIONAL CULTURAL TRUST, NATTIPADAM ROAD, COCHIN-682 016. R1 & R2 BY ADV. SRI.C.E.UNNIKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28190/2008-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE EXECUTION PETITION NO.16/2008 OF THE SUB COURT, CHENGANNUR, FILED BY THE RESPONDENTS. EXT.P.2: COPY OF THE ORDER IN E.P. NO. 16/2008 OF THE SUB COURT, CHENGANNUR. RESPONDENTS' EXHIBIT: EXT.R1.A: COPY OF THE REPORT OF THE CHARTERED ACCOUNTANT DTD. 13/10/2008. //TRUE COPY// P.A. TO JUDGE. Prv. HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.28190 Of 2008 ---------------------- Dated this the 2nd day of November, 2010. J U D G M E N T Petitioners are defendants 2 & 3 in E.P.No.16 of 2008 on the file of the Sub Court, Chengannur. Central Chinmaya Mission Trust, Mumbai, Chinmaya Seva Trust, Thrissur and Chinmaya mission Educational Cultural Trust, Cochin are the plaintiffs in the suit. Chengannur Chinmaya Mission Educational Cultural and Charitable Trust, Chengannur is the first defendant. Petitioners herein are the defendants 2 & 3 in the suit. Ext.P1 is the copy of the execution petition. Suit, namely, O.S.No.115 of 2000 was filed for declaration of first plaintiff's title over the plaint schedule properties and a school under the control of the 1st defendant and for a declaration that the first plaintiff shall have the right to manage and administer the Chinmaya Vidyalaya, Chengannur, for recovery of possession of paint schedule properties as well as the management and administration of the Chinmaya Vidyalaya and for consequential injunction. The trial court declared the title and ordered recovery and granted injunction as prayed for in the plaint. The court also passed a decree ordering compensatory W.P.(C).No.28190 Of 2008 ::2:: cost of Rs.3,000/- under Section 35A of the Code of Civil Procedure. Suit was decreed by directing the defendants to pay the said compensatory cost of Rs.3,000/- to the plaintiffs within a period of one month and also for payment of regular cost of the suit to the plaintiffs. This Court in the appeal confirmed the decree and judgment passed by the trial court. 2. The decree holders filed E.P.No.16 of 2008 against the defendants. It is stated in the E.P. that the defendants in the suit failed to pay the cost ordered by the court and therefore prayed for issuing Order XXI Rule 37 notice to the defendants and for other reliefs. On receipt of Order XXI Rule 37 notice, defendants 2 & 3 who are the judgment debtors 2 & 3 entered appearance. The second defendant/second judgment debtor raised a contention that the decree is not executable in view of Section 11 of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (hereinafter referred to as 'the Act'). The third defendant did not file any objection in time. Subsequently, he filed objection with a petition for accepting his objection at a belated stage. The petition was allowed on payment of cost. But the third defendant/third judgment debtor W.P.(C).No.28190 Of 2008 ::3:: did not pay the cost ordered by the court. Therefore the execution court proceeded as if he has no objection. The court considered the contention raised by he second defendant/second judgment debtor regarding the maintainability of the execution as against him. Section 11 of the Act reads as follows: “11. Enforcement of decree against Society:- If a decree is against the person or officer named on behalf of the society, such decree shall not be executed against the property movable, or immovable, or against the body of such person or officer, but against the property of the Society”. On the basis of the above quoted section the second defendant/second judgment debtor contended that the decree is not executable against him personally. 3. Section 11 deals with the enforcement of decree passed against a society. Ext.P1 is the copy of the execution application which contains the decreetal portion which shows that the decree is passed in the case is not only against the Society but also against the defendants 2 to 4. The decree is passed against all the defendants directing them to pay compensatory cost of Rs.3,000/- with regular costs. The decree does not show W.P.(C).No.28190 Of 2008 ::4:: that the defendants 2 to 4 are impleaded in the suit in their official capacity. They are named persons. They are impleaded in the suit by their names. In the address portion it is stated that they are President, Secretary and Treasurer of the first defendant Society. I have perused the plaint in the suit. In the body of the plaint it is not stated that in what capacity they are impleaded. At the same time the decree is passed against the 4 defendants. That means the decree passed is not only against the society but also against the defendants 2 to 4. So long as the decree does not show that these defendants 2 to 4 are impleaded in their official capacity and decree is passed as against them officially, the execution court has to execute the decree as against the judgment debtors. The decree holder is free to realise the cost amount from the defendants 1, 2, 3 & 4 or from all the defendants. Section 11 of the Act will be applied only in a case where the decree is passed against the Society alone. Here the decree is passed not only against the Society but also against defendants 2 to 4. The execution court rightly observed that the trial court allowed the decree holders to realise compensatory cost from the defendants. In short, the trial court fixed personal W.P.(C).No.28190 Of 2008 ::5:: liability on the second defendant/judgment debtor. The decree passed by the trial court was confirmed by the appellate court. The execution court held that Section 11 of the Act does not have any application in the present case. The objection raised by the second defendant is repelled rightly finding that the judgment debtors are having sufficient means to repay the decree debt. The court ordered to issue arrest warrant against judgment debtors 2 & 3 and posted the case for further steps. In the light of the discussion made above, I do not find any reason to interfere with Ext.P2 order passed by the court below in exercise of my jurisdiction under Article 227 of the Constitution of India. The writ petition fails and accordingly, dismissed. HARUN-UL-RASHID, Judge. bkn/-