IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 Ex.P.No. 1 of 2008() IN O.S. NO.1 OF 1979 -------------------- AGAINST THE JUDGEMENT/ORDER IN AS.359/1980 .................... DECREE HOLDER(S)/PLAINTIFFS: ----------------------------------------------- 1. C.PHILIP ANCHERIL,THNKALAM KARA, KOTHAMANGALAM, ERNAKULAM DISTRICT. 2. P.V. CHACKO, PUTHENPURAKAL HOUSE KOTHAMANGALAM, ERNAKULAM DISTRICT. ADDL.DECREE HOLDERS PARISHNERS IN REPRESETANTIVE CAPACITY 3. BABU PAUL, AGED 33 YEARS, S/O.PAUL ,KUTHUKUZHY HOUSE, KOTHAMANGALAM VILLAGE & TALUK, ERNAKULAM DISTRICT. 4. K.V.JAMES, AGED 47 YEARS S/O. K.E.VARKEY, KATTANGANAL HOUSE, P.O.THANKALAM, KOTHAMANGALAM TALUK. BY ADV. SRI.A.R.GANGULI SRI.T.M.JOSEPH SHYLAN SRI.K.K.APPU JUDGMENT DEBTORS/RESPONDENT(S): ------------------------------------------------------- 1. CHACKO KUNHAPPAN, AGE NOT KNOWN NADUKUZHIYIL HOUSE, ELEMBARA, KOTHAMANGALAM, ERNAKULAM DISTRICT. 2. N.V.KURIAKOSE, NADUKUZHIYIL HOUSE, RAMALLOOR P.O.,KOTHAMANGALAM TALUK ERNAKULAM DISTRICT ADDL. JUDGMENT DEBTORS IN REPRESENTATIVE CAPACITY. 3. FR.JOSE JOHN, 56 YEARS, S/O.YOHANNAN, PARANAYIL HOUSE, P.O.BHOOTHAN KETTU, KEERANPARA VILLAGE KOTHAMANGALAM ERNAKULAM DISTRICT 4. FR.ABRAHAM ,AGED 56 YEARS, S/O. GEEVARGHESE NEDUMTHALLIL HOUSE P.O.ALATTUCHIRA, KUNNATHUNADU TALUK ERNAKULAM DISTRICT 5. FR.C.K.GEEVARGHESE, AGED 62 YEARS S/O.KURIAKOSE, CHERIACHERIL HOUSE P.O.VENGANOOR (E) ,KUNNATHUNADU TALUK ERNAKULAM DISTRICT 6. FR.ABRAHAM AGED 46 YEARS S/O.VARKEY,ALIYATHKUDY, P.O.RAYAMANGALAM PERUMBAVOOR VILLAGE KUNNATHUNADU TALUK ERNAKULAM DISTRICT 7. ABY, AGED 39 YEARS, S/O.VARKEY, CHELATTKALAPURA HOUSE THRIKKARIYOOR VILLAGE ,& BPO, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT 8. P.M.ELDHO, AGED 57 YEARS S/O,MATHAI PALAPPILLIL HOUSE KARUKADAOM VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT . 9. JOHNSON, AGED 42 YEARS S/O. KURIAKOSE, THEKKILKATH HOUSE P.O.KUZHIPPILLY, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT . 10. JOSEPH,AGED 56 YEARS, S/O. KURIAKOSE, KARIMKUTTIPURAM HOUSE KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT . 11. KURIAKOSE, AGED 46 YEARS S/O.PAULOSE, CHUNDATT HOUSE, P.O.NELLIKUZHI, KOTHAMANGALAM VILLAGE & TALUK ERNAKULAM DISTRICT . 12. SALIM, AGED 59 YEARS, S/O.CHERIAN, MALIYIL HOUSE, COLLEGE P.O. KOTHAMANGALAM VILLAGE & TALUK ERNAKULAM DISTRICT . 13. SHIBU, AGED 41,S/O.KURIAKOSE PANAKAL HOUSE, PO KUTHUKUZHI, KOTHAMANGALAM VILLAGE & TALUK ERNAKULAM DISTRICT . 14. THOMAS, AGED 46, S/O. YACOB, KOTTAMGANAL HOUSE, KOTHAMANGALAM PO VILLAGE KOTHAMANGALAM TALUK ERNAKULAM DISTRICT . ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE FOR R9 & 10 SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1,2,5-7,10-13 SRI.T.C.SURESH MENON FOR -DO- SRI.JIBU P THOMAS FOR -DO SRI.P.S.APPU FOR -DO- SRI.A.R.NIMOD FOR -DO- SRI.C.A.ANOOP FOR -DO- SRI.ANIL D. NAIR FOR R4 SRI.J.R.PREM NAVAZ FOR R4 SMT.NIVEDITA A.KAMATH FOR R4 SRI.ANIL D. NAIR FOR R5 SRI.J.R.PREM NAVAZ FOR R5 SMT.NIVEDITA A.KAMATH FOR R5 SRI.S.VINOD BHAT FOR R9 & 10 THIS EXECUTION PETITION HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON 18/10/2011 PASSED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ex.P. No.1 of 2008 in O.S. No.1 of 1979 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of October, 2011. ORDER Unfortunate events gave rise to more than 200 suits relating to the affairs of Malankara Church. On several occasions this court hoped that the two factions of Malankara Church would see reasons and will have the wisdom to bring about an amicable settlement and things would become smooth and atmosphere peaceful. Though a Single Bench of this court at the time of disposal of about 8 suits by a common judgment expressed the hope that the judgment of this court would give a quietus, irrational, illogical and unnecessary disputes and litigations continued between the two factions and an end is far from sight. The factions became more and more belligerent and the atmosphere more and more tense. Even the decision by the Apex Court does not appear to be capable of putting Ex.P.1/2008 in O.S.1/1979. 2 an end to the litigations and almost every day some action from the side of either of the groups give rise to fresh disputes and discords and the litigations continue to proliferate. 2. O.S. 1 of 1979, out of which the present execution proceedings arise, was dismissed along with all other suits. Appeals were preferred and by judgment dated 1.6.1990 a Division Bench of this court allowed the appeals and passed decrees in the suits, which will be referred to later. 3. The matter was carried in appeal to the Apex Court and the Apex Court disposed of the appeals by a common judgment reported in P.M.A. Metropolitan v. Moran Mar Marthoma (AIR 1995 SC 2001). A fresh decree was passed and there were two subsequent modifications to the decree passed by the Apex Court. The subsequent decisions are reported in P.M.A. Metropolitan v. Moran Mar Marthoma Mathews (AIR 1996 SC 3121) and by Ex.P.1/2008 in O.S.1/1979. 3 Rev.P.M.A. Metropolitan v. Moran Mar Marthoma Mathews (AIR 1997 SC 1034). The decree passed by the Apex Court consists of three parts. 4. The decree holders in O.S.1 of 1979 have filed E.P.1 of 2008. In the execution petition it is averred that the judgment debtors shown to the execution petition are violating the order of permanent prohibitory injunction passed by this court while decreeing the suits in appeal and it has become necessary to execute the decree so as to prevent them from doing so. The summary of the decrees and the mode of execution are made mention of in the execution petition. 5. The judgment debtors opposed the execution petition mainly on the ground that what is sought to be executed is the decree passed by the Division Bench of this court, which has been superseded by the decision of the Apex Court. According to them, there is no executable decree passed by the Division Bench in existence as of now Ex.P.1/2008 in O.S.1/1979. 4 and therefore the execution petition is not maintainable. The complaint now raised by the decree holders is covered by Part 2 of the decree passed by the Apex Court and in the light of the said portion of the decree, nothing further remains and the E.P. is only to be dismissed. Another contention taken by the judgment debtors is that the decree drawn up is not in tune with the judgment of this court and therefore the decree cannot be executed. Further contention is that the defendants in O.S.1 of 1979 were not shown in a representative capacity and therefore the decree in the said suit at best can bind only the parties to the suit and neither Section 11 Explanation 6 nor Order I Rule 8 can be attracted to the facts of the case. It is specifically averred that the proceedings in O.S.1 of 1979 will not show that the defendants in the suit were sued in a representative capacity and if that be so, only the first and second judgment debtors were parties to the suit and other judgment debtors shown were not parties to O.S.1 of 1979 Ex.P.1/2008 in O.S.1/1979. 5 and decree can bind only defendants 1 and 2. It is also contended that even assuming that the defendants in the suit were sued in a representative capacity, since judgment debtors 3 to 9 were not eo nominee parties to the decree, the decree for injunction cannot be executed as against them unless a fresh decree is obtained as against them. In support of the above contention, learned counsel appearing for the judgment debtors relied on the decisions reported in Kodia Goundar v. Velandi Goundar (AIR 1955 Madras 281), Soman v. Apputty (AIR 1988 Kerala 212), Jatindra Mohan v. Kali Charan (AIR 1960 Calcutta 623). 6. Learned counsel appearing for the decree holder on the other hand contended that it is fallacious to say that the decree passed by the Division Bench of this court has been superseded and the only executable decree is that of the Apex Court. The Apex Court only modified the decree of this court and that portion of the decree passed by this court relating to which execution is now sought for is Ex.P.1/2008 in O.S.1/1979. 6 very much alive. Learned counsel pointed out that till the elections are conducted and the new committee assumes charge, probably it could be said that that portion of the decree of the Division Bench stands suspended. But once that is over, that portion of the decree revives and it could not be said that the decree of the Division Bench passed by this court cannot be executed. Learned counsel pointed out that the decree passed by the Apex Court cannot be construed as completely superseding the judgment of the Division Bench of this court, which would enable the judgment debtors to continue to flout the prohibitory injunction passed by the Division Bench of this court. It was pointed out by the learned counsel that it was not correct to say that the defendants were not shown in a representative capacity and since some of the judgment debtors were not eo nominee parties to the suit, execution cannot be levied against them. It was also contended that the decree obtained in a representative suit can be executed against Ex.P.1/2008 in O.S.1/1979. 7 persons who are not eo nominee parties to the suit. It was also submitted that if the theory put forward by the judgment debtors is to be accepted, then obtaining of a decree in a representative suit would turn out to be a futile exercise and that could not be the object and purpose of the provisions of the Code of Civil Procedure. 7. The main issue that arises for consideration is when the decree of the Division Bench of this court has been modified by the Supreme Court, which decree survives for being executed. 8. On an earlier occasion, this court had to consider whether the execution petition is maintainable before a Single Bench of this court. Initially it was held that since the decree that was sought to be executed was passed by the Division Bench of this court, the matter has to be placed before the Division bench of this court. The Division bench after bestowing its attention to the issues raised in the matter felt that in fact the decree passed by the Division Ex.P.1/2008 in O.S.1/1979. 8 Bench was a decree that ought to have been passed by the Single Bench and therefore it was held that the E.P. is maintainable before a Single Bench and the E.P. was returned to be tried by a Single Bench of this court. Thereafter by order dated 15.6.2010 this court held that the E.P. is maintainable. The issue regarding the right of the decree holder to execute the decree as also the liability of the additional judgment debtors and the mode by which the court can execute the decree were reserved to be decided at a later stage and the issue as to whether the execution petition is maintainable alone was decided at the earlier stage. That order dated 15.6.2010 has been challenged in Execution First Appeal No. 34 of 2010 before this court and the Division Bench disposed of the appeal with the following observation: “Our attention has been invited to some of the observations made by the learned Single Judge in the impugned order, particularly relating to the executability of the decree. It is true that Ex.P.1/2008 in O.S.1/1979. 9 the learned Single Judge has held that the execution petition is maintainable. We uphold the above view. But we are satisfied that the question touching upon the executability of the decree as it is now available, especially after the conduct of elections on which the Judgment-Debtors have placed much reliance has to be left open. We make it clear that the said question along with all other related issues shall be decided by the learned Single Judge afresh untrammelled or uninfluenced by any of the observations made in the impugned order.” 9. It is thereafter the contentions already referred to have been raised. It is clear from a reading of the order of the Division Bench that this court has to consider the preliminary objections regarding whether the decree is executable, the mode of execution is proper and the liability of the judgment debtors, who were not eo nominee parties to the decree. 10. If this court is to accept the contention that by the decree passed by the Apex court modifying the decree Ex.P.1/2008 in O.S.1/1979. 10 of the Division Bench of this court, the decree passed by the Division Bench ceases to exist, then necessarily the E.P. has to fail. As regards the contention relating to the liability of the persons who are not eo nominee parties to the decree, and whether the mode of execution sought for can be resorted to etc are matters which are to be decided after taking evidence. 11. Normally, the execution court cannot go behind the decree. It has to execute the decree as it stands and the court can deny execution only if the decree is totally without jurisdiction and the mere fact that the decree is not in terms of the judgment may not be a ground for this court to refuse execution. If any of the parties is aggrieved by the decree, they have to resort to the remedies available under the Code of Civil Procedure. 12. The main plea regarding executability of the decree passed by the Division Bench of this court is that it no longer subsists since it has been superseded by the Ex.P.1/2008 in O.S.1/1979. 11 decree passed by the Apex Court. The question that arises is what is the consequence of the decree passed by the Apex Court modifying the decree of this court. 13. One may here refer to the complaint of the decree holders. They say that Clauses 2 and 3 of the decree passed by the Division Bench are being violated by the judgment debtors and therefore the decree has to be executed to prevent them from doing so. It is this claim of the decree holders is countered by the judgment debtors by pointing out that Part 2 of the decree passed by the Apex Court in modification of the decree passed by the Division Bench governs the situation and therefore the decree passed by the Division Bench no longer subsists. 14. First of all, the question that has to be considered is whether there is merger as claimed by the judgment debtors in the case on hand. 15. The main complaint voiced by the decree holder is that in violation of the decree passed by the Ex.P.1/2008 in O.S.1/1979. 12 Division Bench of this court, the judgment debtors continued to appoint Vicars and such other things prohibited by the decree. If the judgment debtors would point out that going by part 2 of the decree passed by the Apex Court, the right of the incumbents to hold posts is to be determined by the Committee to be formed after the elections are conducted. Therefore it is contended that now the elections are conducted, the right or the persons concerned to hold the respective posts will have to be determined by the Committee and this court has no jurisdiction to go into that matter in view of the decree of the Apex Court. As already stated, if the decree passed by the Division Bench no longer subsists, then necessarily the contention of the judgment debtors will have to be upheld. 16. It will be useful to refer to the decision reported in Nakul Deo Singh v. Deputy Commandant (1999(3) K.L.T. 629) wherein it was held has follows: “It is now settled after the decision of the Supreme Court in S.S.Rathore v. State of M.P. (AIR Ex.P.1/2008 in O.S.1/1979. 13 1990 SC 10) that when there is an appeal against the original order even in a service dispute, there is a merger of the original order in the appellate order and the decision rendered by the appellate authority whether it be of dismissal, reduction, allowance or modification of the order of the original authority, a cause of action accrues to the aggrieved person to challenge the appellate order since the order of the original authority merges in the order of the appellate authority. What furnishes the cause of action is the rejection of the appeal by the appellate authority. Communication of that order though the order become effective only on such communication to the aggrieved person only furnishes the aggrieved person with a right of action. Receipt of the communication is not a fact in the bundle of facts constituting the cause of action. Even though only on receipt of the order the aggrieved person may be able to challenge that order, receipt of the order cannot be said to be fact forming the cause of action. For, the cause of action arises on the appeal being dismissed by the authority outside the jurisdiction of the court. The fact that until an Ex.P.1/2008 in O.S.1/1979. 14 order is published or made known, the order does not became effective since it will be open to the authority to change his mind before releasing the order, is not a ground to hold that the communication of the order also forms part of the cause of action to the aggrieved person. The fact that a person who was dismissed from service while he was in service outside the State would have to suffer the consequence of that dismissal when he is in his native place by being rendered jobless, is not a fact which constitutes the bundle of facts giving rise to a cause of action in his favour to challenge his dismissal. That right accrued to him earlier when he was dismissed from service outside the State and he lost his employment. Similarly, when an appeal is filed by him to an appellate authority who is outside the jurisdiction of this High Court and that appeal is dismissed by the appellate authority, the merger in the decision of the Appellate authority takes place when the appeal is dismissed and not when the appellant receives the order. What a writ petitioner need plead as a part of his cause of action is the fact that his appeal was dismissed Ex.P.1/2008 in O.S.1/1979. 15 wholly or in part and not the fact that the order was communicated to him. That plea is relevant only to show when the right of action arose in his favour. The receipt of the order only gives him a right of action on the already accrued cause of action and enables him to meet a plea of laches or limitation raised in opposition. That the consequences of a proceeding in the larger sense are suffered by a person in his native place is not a ground to hold that the High Court within the jurisdiction of which the native place is situate is also competent to entertain a Writ Petition under Art.226 of the Constitution. When a person is dismissed or reduced in rank, he suffers the consequences where he was employed at the relevant time and not in his native place to which he might have retired on his dismissal.” 17. In the decision reported in Maitheen v. Madhavan Nair (2007(2) K.L.T. SN 57) it was held as follows: “When the decree of the trial court is challenged in an appeal, where the appellate Ex.P.1/2008 in O.S.1/1979. 16 court varies, modifies or confirms the decree of the trial court the subsisting and enforceable decree thereafter is the decree of the appellate court. The doctrine of merger is based on the principles or propriety in the hierarchy of the justice-delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation. The doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. When the appellate court passes a decree, the decree of the trial court merges with the decree of the appellate court, the decree of the appellate court supersedes the decree of the trial court. The merger of a decree takes place irrespective of the fact as to whether the appellate court affirms, modifies or reverse its decree passed by the trial court.” 18. In the decision reported in Chandi Prasad v. Jagdish Prasad (2004(3) K.L.T. 654) it was held as follows: “The doctrine of merger is based on the principles of propriety in the hierarchy of justice Ex.P.1/2008 in O.S.1/1979. 17 delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the Appellate Authority. The said doctrine postulates that there cannot be more than one operative decree governing the same subject matter at a given point of time. It is trite that when an Appellate Court passes a decree, the decree of the Trial court merges with the decree of the Appellate Court and even if and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the Trial Court. In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree passed by the Trial Court. When a Special Leave Petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it does. The concept of doctrine of merger and the right of review came up for consideration recently before this Court in Kunhayammed & Ors. v. State of Kerala & Anr. (2000(3) KLT 354 (SC) ) wherein Ex.P.1/2008 in O.S.1/1979. 18 this Court inter alia held that when a Special Leave Petition is disposed of by a speaking order, the doctrine of merger shall apply stating: “41. Once a Special Leave Petition has been granted, that doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make make a difference whether the order is one of reversal or modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and Ex.P.1/2008 in O.S.1/1979. 19 therein the merits of the order impugned having been subjected to judicial scrutiny of this court. 42. “To merge” means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. 43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.” In Kunhayammed (supra), it was observed: Ex.P.1/2008 in O.S.1/1979. 20 “12. Once the Superior Court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the Superior Court, Tribunal or Authority which is the final, binding and operative decree