IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 CRP.No. 238 of 2007() --------------------- {IN EP.109/03 IN IA.357/93 IN OS.43/1981 OF THE SUB COURT, KASARAGOD} .................... REVN. PETITIONER(S)/PETITIONERS 1 & 2/1ST PETITIONER & 11TH RESPONDENT/DEFENDANTS 14 & 16. 1. K.GOPINATHA, S/O.MANMOHANJI, MANAGING TRUSTEE, SRI RAVALANATH BHAIRAVA BHUVANASWARI DEVARU TRUST, KARAKODE,KASARAG0D. 2. K.THARANATHJI,S/O.MAHAVJI, MADHAVA THARA HOUSE, KULAI,MANGALORE. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE SMT.O.K.SANTHA RESPONDENT(S)/RESPONDENTS/RESPONDENTS 8 & 19/ DEFENDANTS 2 & 18: 1. K.SURESHA, S/O.BHAVANISHANKGRA RAO, CLERK, TOWN CO-OPERATIVE BANK, NEAR PANDURANGA TEMPLE, KASARAGOD. 2. K.RAGHUCHANDRA, S/O.K.NARAYANJI, CLERK, L.I.C. OF INDIA, SAGARA, U.K.DISTRICT, KARANATAKA STATE. ADV. SRI.K.SHRIHARI RAO FOR R.1,2 SMT.N.SHOBHA FOR R.1,2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------------------- C.R.P.No.238 of 2007 --------------------------------------------------- Dated this the 16th day of February, 2010 O R D E R The revision is directed against the order dated 13.9.2006 in E.P.No.109/03 in I.A.No.357/93 in O.S.No.43/1981 passed by the learned Sub Judge, Kasargod. Revision petitioners are two among the defendants, 6th and 14th defendant, and one among the plaintiffs (2nd plaintiff) in the suit, which was one for partition. Suit for partition among the members of a joint family was settled and a compromise decree passed on 17.9.1996. 2. The compromise decree, over and above the allotment of shares to the members of the family made provisions for the performance of viniyoga in the family temple in terms of an earlier compromise entered by the parties specifying the terms and conditions for management of the temple. The arrangement agreed to earlier, spelt out in a petition filed before court, also dealt with C.R.P.No.238 of 2007 :: 2 :: the constitution of the trust, assets of the temple and various other regulations for management of that temple. In the compromise decree passed in the suit, it is stated, for the purpose of management of the temple, a clause was incorporated in the following terms: “That the performance of pooja and viniyoga will be governed by the constitution agreed in compromise petition in I.A.No.1183/96. The said petition will form part of the final decree.” 3. On the basis of the above clause in the compromise decree, the petitioners herein moved the execution proceedings for orders from the court for delivery of the property from the defendants, which had been stated in I.A.No.1183/96 as forming part of the assets of the temple. The execution proceedings so sought for was objected to by the respondents contending that the incorporation of the clause above at the most C.R.P.No.238 of 2007 :: 3 :: amounted only to a declaration and the compromise decree passed in the suit does not provide for delivery of the properties from the defendants to the temple. Accepting the objections raised by the respondents, the learned Sub Judge dismissed the execution application under the impugned order. Propriety and correctness of that order is challenged in the revision invoking the supervisory jurisdiction vested with this court. 4. I heard the counsel on both sides. 5. Placing reliance in Sreedharan v. Bhaskaran (1986 K.L.T. 102) learned counsel for the revision petitioners contended that the decree passed on a compromise even if it is silent on execution and delivery, still it can be executed to give effect to the decree. There need not be any specific provision in the decree as to the executability of I.A.No.1183/96 is the submission of the counsel to contend that when it has been C.R.P.No.238 of 2007 :: 4 :: incorporated as forming part of the compromise decree, delivery of the property in terms of such petition can be sought for through court. On the other hand, learned counsel for the respondents contended that incorporation of the I.A or reference to that IA in the compromise decree has to be considered with reference to what is stated in the decree and nothing more can be read into the language of the decree. A reference to I.A.No.1183/96 in the decree has been made in the compromise decree only in respect of the viniyoga agreed upon by the parties and that being so, it is submitted, there is no merit in the case canvassed by the revision petitioners that by the mere inclusion of any property as an asset of the temple, the property would be delivered over in execution of the compromise decree passed in the suit. 6. Copy of the compromise decree passed in the suit and also a copy of the petition I.A.No.1183/96 agreeing to the C.R.P.No.238 of 2007 :: 5 :: constitution of the trust relating to the temple, and the terms agreed upon by the parties for conducting poojas and viniyogas of the temple were handed over to me by the learned counsel for the revision petitioners. Perusing the copy of the I.A.NO.1183/96 it is seen, the parties agreed to the formation of a trust for the administration and management of the family temple making provisions and also conditions for management of the assets of the trust. When the compromise decree was passed a clause was also incorporated that the pooja and viniyoga of the temple shall be regulated as covered by the above IA. In that context, in the compromise decree, reference to the IA was also made mention of. If the argument of the learned counsel for revision petitioners is accepted, that by such reference whatever is stated in I.A.No.1183/96 is executable, then it has to be stated that any dispute relating to the constitution of the trust and any violation of the rules and regulations as C.R.P.No.238 of 2007 :: 6 :: covered by that petition etc. should be thrashed out in execution of the decree. Parties will be left with no remedy otherwise than under Section 47 of the Code of Civil Procedure for determination of any question relating to the temple and the trust formed under I.A.No.1183/96, if that IA is to be treated as coming within the ambit of the execution and satisfaction of the decree. By no stretch of imagination it can be held to be so. The decision relied by the counsel Sreedharan v. Bhaskaran has no application to the facts of the case. That was a case where two brothers entered into a compromise with respect to the surrendering of a building within the time stipulated. Though no provision was made in that decree as to the executability, it was held that in the compromise decree the incidents of execution are incorporated by the agreement entered into by the parties. In the present case, the situation is entirely different. Settlement C.R.P.No.238 of 2007 :: 7 :: arrived earlier in respect of the management of a temple as to the formation of the trust, board of trustees rules and regulations etc. cannot be read as part of the compromise decree, but only the provisions agreed for conducting of poojas and viniyoga of the temple. The court below was perfectly justified in concluding that the decree did not provide for execution as sought for by the petitioners. Revision lacks merits and it is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//