T.Madhu vs K.K.Suresh
2021 Latest Caselaw 17475 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
                        EX.FA NO. 4 OF 2021
  AGAINST THE ORDER/JUDGMENT DATED 12.07.2019 IN E.A.399/2016 IN
        E.P.NO.133/2007 IN OS 90/2006 OF SUB COURT,ALAPPUZHA
APPELLANTS/PETITIONERS:
     1     T.MADHU, S/O.THANKAPPAN, VELIMPARAMBU, ARATTUVAZHI,
           ALAPPUZHA.

    2      P.S.AJAYAN, AGED 56,
           S/O.SANKARAN, PUTHENPURACKAL, ARATTUVAZHI, ALAPPUZHA.

           BY ADVS.
           M.NARENDRA KUMAR
           SHRI.P.S SANDEEP KRISHNAN



RESPONDENTS/RESPONDENTS:
     1     K.K.SURESH,S/O.K.A.KAMALAKARAN, KUDUVASSERIL VEEDU,
           THUMPOLLY P.O., ALAPPUZHA, PIN-688 001.

    2      SREE KANDAKARNA KSHETHRAYOGAM,
           KANJIRAMCHIRA, REPRESENTED BY ITS PRESIDENT AND
           SECRETARY, OFFICE OF THE SREE KANDAKARNA KSHETHRAHOGAM,
           KANJIRAMCHIRA, ALAPPUZHA, PIN-688 001.

    3      SREEPADAM FUNDS, KANJIRAMCHIRA, ALAPPUZHA REPRESENTED
           BY CHAIRMAN, OFFICE OF THE SREE KANDAKARNA
           KSHETHRAYOGAM, KANJIRAMCHIRA AND SECRETARY SREE
           KANDAKARNA KSHETHRAYOGAM, KANJIRAMCHIRA, PIN-688 001.

           BY ADVS.
           SRI.SADCHITH.P.KURUP
           SRI.JOSE ANTONY
           SRI.C.P.ANIL RAJ


     THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON
26.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 EX.FA NO. 4 OF 2021                     2

                                                                       CR
                                    JUDGMENT

Two devotees of a public temple representing the

deity by name Sree Khandakarna Kshethram, Kanjiramchira,

Alappuzha came up with a petition under Order XXI

Rule 97 C.P.C. obstructing the delivery of a portion of

property belonged to the deity in execution of a money

decree. It was dismissed by the Sub Judge on the ground

that no document was produced by the petitioners to show

their right, title or interest over the property to

obstruct the delivery. The fundamental principles

governing a perpectual minor and competency of a devotee

to represent the deity/idol in a legal proceedings, the

binding force of a decree against a perpectual minor and

the legal entity of an idol in a public temple, though

raised, were not even taken into consideration in the

impugned order. It is unfortunate that the officer (Sub

Judge concerned) did not even go into the abovesaid

issues or understand the dispute involved in the

petition, but dismissed the same on an extraneous ground

that none of the claim petitioners produced any document

of their right, title or interest to obstruct delivery.

2. It is a case wherein a decree is sought to be

executed against the property held by a public temple and

the idol thereof. Neither the public temple nor the idol

was made as a party to the suit or the decree thereof.

It is a money decree against two unincorporated

associations named after the temple viz., Sree

Khandakarna Kshethrayogam, Kanjiramchira, Alappuzha

represented by its President P.Rajeev, its Secretary

S.N.Thyagarajan, the first defendant and The Sreepadam

Funds, Kanjiramchira, Alappuzha represented by Chairman

V.V.Viswan, the second defendant. Since the defendants

are unregistered and unincorporated associations, leave

was granted to institute the suit under Order I Rule 8

C.P.C.

3. It is submitted by the respondent/decree holder

that since there is a publication under Order I Rule 8

C.P.C., the claim petitioners are bound by the decree

though the idol or the public temple was not made as a

party to the suit or the decree thereof. The said

contention is not seen either taken up or discussed by

the Sub Judge who passed the impugned order. The purpose

of Order I Rule 8 CPC is to give notice to all interested

persons, when there are numerous persons having the same

interest in one suit. The expression "on behalf of"

incorporated in Rule 8(1) of Order I C.P.C. must be

appreciated and understood in relation to the words

"having the same interest in one suit". Order I Rule 8

C.P.C. would operate only against a person, who is having

the same interest as that of a person, who was permitted

to either institute a suit or defend a suit in a

representative capacity and it will not have any

operation or binding force to any other person who is

having a different interest. Necessarily, the binding

nature of the suit or the decree, if any, passed therein

in compliance with Order I Rule 8 C.P.C. must be

understood as binding on only those persons in whose

behalf the suit was instituted or defended in a

representative capacity having the "same interest" and

none else.

4. The deity or the public temple was not made as a

party to the suit and no leave was obtained to institute

a suit in a representative capacity as against the idol

or the public temple, though the idol would constitute a

jural and legal entity as a perpectual minor. Since the

devotees are numerous, a fluctuating body, of course, in

order to institute or defend a suit against the deity or

idol, leave has to be obtained under Order I Rule 8

C.P.C., for which, the deity or idol should be in the

party array and the suit must be one either by the idol

or against the idol represented by a competent person.

5. In the instant case, the deity or the idol or

the temple is not in the party array. Two unincorporated

associations named after the temple were made as the

defendants and it is a money decree against the abovesaid

two unincorporated associations and it would bind only on

the persons who are the members of the unincorporated

associations or having interest thereof.

6. Further, Ext.A1 document purported to be a

settlement deed has not been taken into consideration by

the court below. It is based on Ext.A1 deed, the prior

owners of the family temple entrusted the temple and its

properties to the public for the welfare of the deity and

its devotees. Party Nos.6 to 11 in the document were

initially entrusted with the administration with a

stipulation that 35 members should be elected from the

general public for administering the temple and thereby

created a public trust. Ext.A1 document is of the year

1121ME. Hence the money decree against two unincorporated

associations, though named after the deity, cannot be

executed against the deity or the idol. It is so strange

enough that the court below observed that PW1 obstructed

the delivery, eventhough he is not a member of the

Executive Committee and had admitted that the temple is

being managed by the administrative committee. The well

settled legal principle is that even a worshipper or a

devotee can also maintain a legal proceeding, when there

is failure on the part of the administrative committee or

the committee constituted for its administration or on a

breach of trust. Hence, the resistance and obstruction

offered by the petitioners are lawful as the decree

cannot be executed against the properties of idol, who

are not bound by the decree. The execution proceedings

initiated against the idol and its property are hence

liable to be set aside. Hence, the dismissal of the

application under Order XXI Rule 97 C.P.C. against the

petitioners cannot be sustained. E.A.No.399/2016 will

stand allowed. The appeal is allowed accordingly.

The Registry is directed to forward a copy of this

judgment to the Directorate of Training attached to this

Court for future guidance while imparting training to the

judicial officers.

Sd/-

P.SOMARAJAN JUDGE msp

APPENDIX OF EX.FA.NO.4/2021

PETITIONERS ANNEXURES:NIL

RESPONDENTS ANNEXURES:

ANNEXURE R1A TRUE COPY OF THE PLAINT DATED 11.7.2006 IN O.S.NO.90/2006

ANNEXURE R1B TRUE COPY OF THE JUDGMENT DATED 23.02.2007 PASSED IN OS.NO.90/2006

ANNEXURE R1C TRUE COPY OF EP NO.133/2007 IN OS NO.90/2006

ANNEXURE R1D TRUE COPY OF SALE CERTIFICATE DATED 13.5.2015

ANNEXURE R1E TRUE COPY OF EA NO.589/2009 IN EP NO.133/2007 IN O.S.NO.90/2006

ANNEXURE R1F TRUE COPY OF ORDER DATED 14.1.2015 PASSED IN EA NO.589/2009 IN EP 133/2007 IN OS NO.90/2006

ANNEXURE R1G TRUE COPY OF EA NO.399/2016 IN EA NO.445/2015 IN EP NO.133/2007 IN O.S.NO.90/2006

//TRUE COPY//

P.A.TO JUDGE