IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 CRP.No. 891 of 2008() --------------------- AGAINST THE ORDER DATED 18/11/2008 IN EP 176/06 IN OS.252/2002 of PRL.MUNSIFF COURT,NEDUMANGAD .................... PETITIONERS/JUDGEMENT DEBTORS 2 & 4 TO 13 & 15 TO 16 ----------------------------------------------------------------------- 1. CHELLAMMA, AGED 83, SUKUMARA BHAVAN, PERUMKUOOR, VEMBAYAM P.O., THIRUVANANTHAPURAM DIST. 2. RADHAMMA, D/O.BHASKARA PILLAI, SUKUMARA BHAVAN, PERUMKUOOR, VEMBAYAM P.O., THIRUVANANTHAPURAM DIST. 3. P.G.SUKUMARA PILLAI, PALAVILA VEEDU, MANVALLIKONAM MARIYAM, VENJARAMOODU 4. PREMKUMAR, S/O.K.APPUKUTTAN PILLAI, PANICKARUKONATH VEEDU, MANALI MUKKU, VENJARAMOODU. 5. REJIKUMAR, SATYALAYAM, MANALIMUKKU, VENJARAMOODU, THIRUVANANTHAPURAM. 6. SUMATHY AMMA, W/O.K.APPUKUTTAN PILLAI, PANICKARUKONATH VEEDU, MANALI MUKKU, VENJARAMUDU. 7. PREMAKUMARI, D/O.SANTHAMMA, PANICKARUKONATH VEEDU, MANALI MUKKU, VENJARAMUDU. 8. OMANA, D/O.SARASAMMA, PANICKARUKONATH VEEDU, MANALI MUKKU, VENJARAMUDU. 9. VASUDEVAPILLAI, S/O.SARASAMMA, PANICKARUKONATH VEEDU, MANALI MUKKU, VENJARAMUDU. 10. SUSEELA, D/O.SARASAMMA, PANICKARUKONATH VEEDU, MANALI MUKKU, VENJARAMUDU. 11. GIRIJA, D/O.SARASAMMA, PANICKARUKONATH VEEDU, MANALI MUKKU, VENJARAMUDU. CRP 891/08 12. SOBHANA, D/O.SARASAMMA, PANICKARUKONATH VEEDU, MANALI MUKKU, VENJARAMUDU. 13. BABU, S/O.SARASAMMA, PANICKARUKONATH VEEDU, MANALI MUKKU, VENJARAMUDU. BY ADV. SRI.M.H.HANIL KUMAR RESPONDENTS/DECREE HOLDERS: --------------- 1. SANTHIMADAM, SIVASHETRAM, VENJARAMOODU, REPRESENTED BY ITS SECRETARY, SREEDHARAN PILLAI, S/O.KESAVA PILLAI, PKM BUILDING MARIYAM, VENJARAMOODU P.O., THIRUVANANTHAPURAM DIST. 2. SREEDHARAN PILLAI, S/O.KESAVA PILLAI, SECRETARY, SANTHIMADAM, SIVASHETRAM, PKM BUILDING MARIYAM, VENJARAMOODU P.O., THIRUVANANTHAPURAM DIST. 3. SUDHAKARAN, S/O.SARASAMMA, SARASAMMA, PANICKARUKONATHU VEEDU, MANALI MUKKU, VENJARAMUDU P.O., (NOW EMPLOYED IN INDIAN ARMY). ADV. SRI.T.R.RAJAN FOR R1 & 2 SRI.S.SREEKUMAR (TVM) FOR R1 & 2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON 16.10.2009 PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.891 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 16th October, 2009 ORDER The revision under challenge arises from a proceedings under Order XXI Rule 32 of the Code of Civil Procedure. Thirteen out of sixteen judgment debtors proceeded against for violating a decree of perpetual prohibitory injunction passed by the learned Munsiff, Nedumangad in O.S.No.252 of 2002, are the revision petitioners. The 1st and 3rd judgment debtors had passed away during the pendency of the proceedings and the 14th judgment debtor is stated to be serving as a soldier in Armed Forces. The dispute involved in the suit, admittedly, related over the administration of a family temple, the 1st respondent in the revision, which was the 1st plaintiff in the suit. The parties in the proceedings, the decree holders and the judgment debtors, are members of a family having right and interest over the 1st plaintiff temple. The property comprising the 1st plaintiff temple belonged to one Bhaskara Pillai, and on his death, his widow, who got absolute right, title and possession over the same pursuant to release of rights in her favour by the children, executed a settlement deed dedicating the temple for the benefit of the family with direction that the senior most member of the family shall carry CRP No.891/08 - 2 - out its administration. Suit was laid by the 2nd plaintiff as the Secretary of a Committee in administration of the temple for a perpetual prohibitory injunction to restrain the defendants from interfering with his right to manage the temple. On the date of filing of the suit, the 1st defendant was the senior most member of the family entitled to be in administration of the temple as per the terms of the settlement deed. Since the 1st defendant was infirm and weak, he permitted the 2nd plaintiff to carry out the administration of the temple, was the case of the 2nd plaintiff apart from his entitlement as Secretary of the temple Committee to seek a decree of injunction against that defendant also, with other family members, who were arrayed as defendants in that suit. Suit was decreed granting a perpetual prohibitory injunction restraining the defendants from interfering with the right of the 2nd plaintiff in managing the affairs of the plaint schedule property and the 1st plaintiff temple. 2. The decree holders/plaintiffs, later, initiated proceedings against the judgment debtors by filing a petition under Order XXI Rule 32 of the CPC. The judgment debtors resisted the application contending that a new Executive Committee had been elected by the family members for administration of the temple, and in fact, that CRP No.891/08 - 3 - Committee was prevented by the 2nd decree holder from effectively managing the temple. In the enquiry over the proceedings, PWs.1 and 2 were examined and Ext.A1 exhibited on the side of the decree holders. CPW1 and CPW2 were examined on the side of the judgment debtors. A report filed by the Circle Inspector of Police examined as PW1 was also exhibited in evidence as Ext.C1. The learned Munsiff, after examining the materials produced and hearing the counsel on both sides, came to the conclusion that the judgment debtors had violated the decree of injunction, and on such finding, all the judgment debtors were directed to be detained in civil prison for a period of one month each. A further direction was also made directing the office bearers of the present temple committee to handover the key of the temple and the hundi and surrender the possession of the plaint schedule property to the 2nd decree holder, who was also allowed to realise the costs of the proceedings from the judgment debtors. Propriety and correctness of the order so passed by the learned Munsiff is impeached in the revision. 3. I heard the counsel on both sides. Perusing the order passed by the learned Munsiff, it is evident that no attempt was made to examine the scope of the decree granted in the suit in favour of the CRP No.891/08 - 4 - decree holders and how far the proceeding under Order 21 Rule 32 of the C.P.C. would lie against the judgment debtors on the imputations levelled as to their disobedience or violation of the decree of injunction. The first decree holder, admittedly, a family temple belonged to the parties in the suit, and it was represented by the second decree holder. The second decree holder evidently filed the suit as the Secretary of a Committee constituted by the family members for administration of the temple. Though the settlement deed mandated administration of the temple by the senior most member of the family, who at the time of filing of the suit was the first defendant, it was the case of the second plaintiff that a committee was constituted by the family members and he was its Secretary-in-Charge of the administration of the temple. He had a further case that the first defendant, the senior most member, was infirm, and as such that defendant permitted him to administer the management of the temple. During the pendency of the suit the first defendant passed away, and the second plaintiff became the senior most member of the family. Be that as it may, the suit was instituted for the relief claimed on the basis that the second plaintiff was the Secretary of the committee constituted by the family members for CRP No.891/08 - 5 - administration of the temple. The judgment debtors disputed the imputations against them as to violation of the decree contending that a new committee had been formed by the family members after the passing of the decree and it is in management of the temple. The learned Munsiff without examining the merit of that contention with reference to the decree of injunction passed in the suit in favour of the second plaintiff accepted the case canvassed by him that he alone is entitled to administer the affairs of the temple and any interference with his right to do so by the judgment debtors who are admittedly family members having interest over the temple amounted to flouting of the decree of injunction passed in the suit. Though the second decree holder on the death of the first defendant during the pendency of the suit became the senior most member of the family and, thus, entitled to have the right to administer the temple as per the terms of the settlement deed, that was never a question adjudicated upon in the suit as the claim for decree of injunction was canvassed by him as the Secretary of the committee elected by the family members to manage the temple. When a committee had been formed to administer the temple by the family members, whatever be the terms provided under the settlement for its administration, with none of the CRP No.891/08 - 6 - family members having objection to the formation of such committee, that is a material circumstance which has to be appreciated and taken due note of by the court in ascertaining the scope of the decree of injunction granted in the suit. Unfortunately, the learned Munsiff proceeded with the enquiry even raising points for determination as if the judgment debtors are accused persons liable to be tried and punished for disobedience of the decree of injunction. The first point raised for determination in the proceeding reads thus: “Had the accused opportunity to obey the terms of the permanent prohibitory injunction decree dated 6.9.05 passed in this case?” The judgment debtors in a decree proceeded under Order 21 Rule 32 of the C.P.C. are not accused persons, but only parties who are bound by the decree answerable and liable to be proceeded for violation of the decree, and if found to be condemners of the decree of injunction, then to suffer punishment by attachment of their property or detention in civil prison or both, as provided under the above rule. Strangely enough, the learned Munsiff has relied upon the report of a police officer and his opinion as P.W.1 as material evidence supporting the case of the decree holders that the decree of CRP No.891/08 - 7 - injunction had been violated by the judgment debtors. Opinion of the police officer(P.W.1), a Circle Inspector of Police as to how he understood the decree, the directions issued by him to the judgment debtors for compliance of the decree and the steps taken by him to get a written endorsement from the judgment debtors for obeying the decree, coupled with the fact that police officer was not cross examined by the judgment debtors, it appears, very much impressed the learned Munsiff with that of the evidence of the first respondent, the second decree holder, to conclude that the judgment debtors had violated the decree in forming a new committee for administering the temple. So far as a civil case is concerned unless there is a law and order problem a police officer has no business to meddle with that dispute and his opinion as to how he understood the decree passed by the court has least significance or merit. Primary question to be looked into in the enquiry was the scope of the decree and in what capacity the decree of injunction was obtained by the 2nd decree holder against the defendants in the suit. Even if he happened to be a senior most member of the family entitled to administer the affairs of the temple as per the terms of the settlement deed as on the date of passing of the decree, it was never a question adjudicated upon in CRP No.891/08 - 8 - granting the decree, which was confined to his right as the then Secretary of a committee to manage the temple, that alone. If that be so, needless to point out the decree of injunction can continue only so long as the second judgment debtor held the office of the Secretary of the committee. An enquiry on that question is material, in the given facts of the case, to determine whether any of the judgment debtors had violated the decree and if so, liable to be proceeded under Order 21 Rule 32 of the C.P.C. 4. Before concluding it is necessary to point out that one of the judgment debtors involved in the proceedings, namely, the third respondent, is stated to be a serving Solider in the Indian Army. Even if that judgment debtor proceeded for violation of the decree had not raised the special protection conferred on him as being a Solider in respect of proceeding before a civil court, the executing court should have taken note of the statutory provisions covered by (the Indian) Soldiers (Litigation) Act, 1925. True, a Soldier has to present an application before the court to seek protection and also produce a certificate issued by his commanding authority to seek protection covered by that Act. Whatever that be, without even examining the question and entering a definite finding how the third respondent, a CRP No.891/08 - 9 - serving Solider, had disobeyed the decree and in what manner he had violated the injunction by his wilful disobedience, the learned Munsiff has ordered for his detention also in the civil prison for one month. The execution petition filed by the second decree holder, it is noticed, does not spell out the date or particulars as to how the decree of injunction was violated by the judgment debtors, nor of specific acts committed by the judgment debtors in wilfully disobeying the decree of injunction. Specific averments as to how the decree was violated by the judgment debtors and proof as to their wilful disobedience of the decree of injunction, needless to point out, are essential to hold that they or any of them are condemners, to punish them under Order 21 Rule 32 of the C.P.C. Setting aside the impugned order, the court below is directed to examine the matter afresh taking note of the observations made above, and dispose of the proceedings initiated by the decree holders under Order 21 Rule 32 of the C.P.C., as expeditiously as possible, in accordance with law. Revision is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE