Kerala High Court
M.K. George vs Fr. A.J. Abraham on 13 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
OP(C) NO. 446 OF 2021
AGAINST THE ORDER DATED 06.02.02021 IN E.A.NO.780/2020 IN
E.P.NO.565/2020 IN OS 163/1977 OF I ADDITIONAL DISTRICT
COURT, ERNAKULAM,
PETITIONER:
0
GEORGE VARGHESE.P, AGED 55 YEARS
PANDYAMYALIL HOUSE, KANJIRAMATTOM.P.O,
ERNAKULAM-682315.
BY ADVS.
SRI.P.RAVINDRAN (SR.)
SHRI.SREEKUMAR S
SRI.N.RAGHURAJ
RESPONDENTS:
1 FR. A.J.ABRAHAM, AGED 46 YEARS,
S/O.A.T.JACOB,VICAR,ST.IGNATIUS ORTHODOX SYRIAN
CHURCH,KANJIRAMATTOM,ERNAKULAM DISTRICT-682315.
2 K.I.THANKACHAN, AGED 53 YEARS,
S/O ITTAN,TRUSTEE,ST.IGNATIUS ORTHODOX SYRIAN
CHURCH,KANJIRAMATTOM,ERNAKULAM DISTRICT-682315.
3 PETER N CHACKO, AGED 61 YEARS,
S/O CHACKO,MANAGER ELECTED,ST.IGNATIUS VOCATIONAL
HIGHER SECONDARY SCHOOL,KANJIRAMATTOM,ERNAKULAM
DISTRICT-682315,
NEDUMATTATHIL HOUSE,CHETHIKKODE.P.O, ERNAKULAM.
4 M.K.GEORE,
VAZHAKKALAYIL HOUSE,CHETHIKKODE.P.O,
EX-TRUSTEE,ST.IGNATIUS ORTHODOX SYRIAN CHURCH,KANI-
RAMATTOM,ERNAKULAM -682315.
5 M.T.ISSAC,
EX-TRUSTEE,ST.IGNATIUS ORTHODOX SYRIAN CHURCH,KAN-
JIRAMATTOM,ERNAKULAM DISTRICT-682315.
6 SAJU P.POULOSE,
S/O POULOSE,PALLAMKUNNEL HOUSE,CHETHICODE,
KANJIRAMATTOM,ERNAKULAM DISTRICT-682315(EX-
TRUSTEE).
7 V.G.KURIAKOSE,
KANIYAMPARAMBIL HOUSE,EX-TRUSTEE,KANJIRAMATTOM,
O.P.(C)No.446 of 2021 & :-2-:
C.R.P.No.81 of 2021
ERNAKULAM DISTRICT-682315.
8 THE DISTRICT EDUCATIONAL OFFICER,
OFFICE OF THE DISTRICT EDUCATIONAL OFFICER,ERNAKU-
LAM-682011.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SMT.SOUMIYA C.D
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH
C.R.P.NO.81 OF 2021 ON 09.04.2021 AND THEREAFTER ON
04.06.2021, 08.06.2021, 21.06.2021 AND 30.06.2021 FOR
FURTHER ARGUMENTS, THE COURT ON 13.07.2021 DELIVERED THE
FOLLOWING:
O.P.(C)No.446 of 2021 & :-3-:
C.R.P.No.81 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
CRP NO. 81 OF 2021
AGAINST THE COMMON ORDER DATED 06.02.02021 IN E.P.NO.565/2020
IN OS 163/1977 OF THE I ADDITIONAL DISTRICT COURT, ERNAKULAM
REVISION PETITIONERS/JUDGMENT DEBTORS 1 TO 5:
1 M.K. GEORGE, AGED 90 YEARS
S/O. KURIAKOSE, VAZHAKKALAYIL HOUSE, CHETHIKKODE
P.O., EX-TRUSTEE, ST. IGNATIUS ORTHODOX SYRIAN
CHURCH, KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN-
682315.
2 M.T.ISSAC, AGED 84 YEARS
S/O.THOMMAN, EX-TRUSTEE, ST. IGNATIUS ORTHODOX SYR-
IAN CHURCH, KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN-
682315, MOOLAMKUZHIYIL HOUSE, KANJIRAMATTAM, ER-
NAKULAM DISTRICT.
3 SAJU P. POULOSE, AGED 67 YEARS,
S/O.POULOSE, ST. IGNATIUS ORTHODOX SYRIAN CHURCH,
KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN-682315, PUL-
LAMKUNNEL HOUSE, KANJIRAMATTAM P.O., ERNAKULAM DIS-
TRICT, PIN-682315
(EX-TRUSTEE).
4 V.G.KURIAKOSE, AGED 54 YEARS
S/O.GEORGE, KANIYAMPARAMBIL HOUSE, KANJIRAMATTAM
P.O., ERNAKULAM DISTRICT, PIN-682315 ( EX-TRUSTEE).
5 GEORGE VARGHESE P., AGED 55 YEARS
S/O.VARGHESE, PANDYAMYALIL HOUSE, KANJIRAMATTAM
P.O., ERNAKULAM DISTRICT, PIN-682315.
BY ADVS.
K.J.KURIACHAN
SRI.P.VISWANATHAN (SR.)
RESPONDENTS/DECREE HOLDERS AND 6TH JUDGMENT DEBTOR:
1 FR. A.J. ABRAHAM, AGED 46 YEARS
S/O. A.T.JACOB, VICAR, ST. IGNATIUS ORTHODOX SYRIAN
CHURCH, KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN-
682315.
2 K.I.THANKACHAN, AGED 53 YEARS
S/O. ITTAN, TRUSTEE, ST. IGNATIUS ORTHODOX SYRIAN
O.P.(C)No.446 of 2021 & :-4-:
C.R.P.No.81 of 2021
CHURCH, KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN-
682315, KAKKERATH HOUSE, MEVELLOOR P.O., VELLOOR
VILLAGE, KOTTAYAM DISTRICT, PIN-686609.
3 PETER N. CHACKO, AGED 61 YEARS
S/O.CHACKO, MANAGER ELECTED, ST. IGNATIUS VOCATION-
AL HIGHER SECONDARY SCHOOL, KANJIRAMATTAM, ERNAKU-
LAM DISTRICT, PIN-682315, NEDUMATTATHIL HOUSE,
CHETHIKKODE P.O., ERNAKULAM.
4 FR. JOSHI MTHEW, AGED 48 YEARS
S/O.MATHAI, CHITTETH HOUSE, KULAYITTIKKARA P.O.,
KANJIRAMATTAM, ERNAKULAM DISTRICT, PIN-682315.
BY ADVS.
SRI.GEORGE THOMAS (MEVADA)(SR.)
SMT.SOUMIYA C.D
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION
ALONG WITH O.P.(C)NO.446 OF 2021 ON 09.04.2021 AND
THEREAFTER ON 04.06.2021, 08.06.2021, 21.06.2021 AND
30.06.2021 FOR FURTHER ARGUMENTS, THE COURT ON 13.07.2021
DELIVERED THE FOLLOWING:
O.P.(C)No.446 of 2021 & :-5-:
C.R.P.No.81 of 2021
JUDGMENT/ORDER
The issues raised in the original petition and civil revision
petition are in relation to the administration and management of
St.Ignatius Orthodox Syrian Church, Kanjiramattom and St.Ignatius
Vocational Higher Secondary School, Kanjiramattom. Since common
issues are raised, these matters were heard together and are being
disposed of by this common judgment/order.
2. O.P.(C)No.446 of 2021:- The petitioner, who is the 5th
respondent/5th judgment debtor in E.A.No.780 of 2020 in
E.P.No.565 of 2020 in O.S.No.163 of 1977 on the file of the First
Additional District Court, Ernakulam, has filed this original petition
under Article 227 of the Constitution of India, seeking an order to
set aside Ext.P12 order dated 06.02.2021 of the said court, in that
execution application. The petitioner has also sought for a
declaration that his continuance as the Manager of St.Ignatius
Vocational Higher Secondary School, Kanjiramattom, till a duly
constituted Managing Committee of the school is elected from
among the parishioners, in accordance with the provisions of 1934
Constitution, is legal and proper. As per the impugned order, the
District Educational Officer, Ernakulam, the 8 th respondent herein,
was directed to approve change of management of St.Ignatius
O.P.(C)No.446 of 2021 & :-6-:
C.R.P.No.81 of 2021
Vocational Higher Secondary School, based on the application made
by respondents 1 to 3, who are petitioners 1 to 3/decree holders 1
to 3 in E.A.No.780 of 2020 in E.P.No.565 of 2020 in O.S.No.163 of
1977. The petitioner, who is presently functioning as the Manager of
the said school, is restrained from functioning as such. If he is not
doing so, the decree holders are permitted to execute the decree
with the assistance of the court.
2.1. On 23.02.2021, when this original petition came up for
admission, this Court issued urgent notice on admission by special
messenger to respondents 1 to 7, returnable by 26.02.2021. The
learned Government Pleader took notice on admission for the 8 th
respondent District Educational Officer. On 26.02.2021, respondents
1 to 7 entered appearance through counsel. The learned
Government Pleader, on instructions from the 8 th respondent
District Educational Officer, submitted that the said respondent is
yet to conduct a personal hearing in the matter of approval of
managership of St.Ignatius Vocational Higher Secondary School,
Kanjiramattom. Having considered the submissions made by the
learned Senior Counsel for the petitioner, the learned Senior
Counsel for respondents 1 to 3 and also the learned Government
Pleader appearing for the 8 th respondent and taking note of the
O.P.(C)No.446 of 2021 & :-7-:
C.R.P.No.81 of 2021
reasoning of the execution court in Ext.P9 order dated 23.10.2020
in E.A.No.709 of 2020 and Ext.P12 order dated 06.02.2021 in
E.A.No.780 of 2020 in E.P.No.565 of 2020, this Court granted an
interim order to maintain status quo as on that date, with respect
to the managership of St.Ignatius Vocational Higher Secondary
School, Kanjiramattom, till the next posting date. The learned
Senior Counsel for respondents 1 to 3 submitted that the petitioner
may be restrained from making any appointments in the school.
Therefore, in the order dated 26.02.2021, it was made clear that
the order of status quo granted as above will not enable the
petitioner to make any appointment in St.Ignatius Vocational
Higher Secondary School, Kanjiramattom, or to take any policy
decision in the management of the school. The said interim order,
which was extended from time to time, is till in force.
2.2. On 10.03.2021, respondents 1 to 3 have filed a counter
affidavit, opposing the reliefs sought for in this original petition. On
25.03.2021 the petitioner has filed a reply affidavit to the counter
affidavit filed by respondents 1 to 3. Respondents 1 to 3 have also
filed an additional counter affidavit.
3. C.R.P.No.81 of 2021:- The petitioners, who are
arrayed as judgment debtors 1 to 5 in E.P.No.565 of 2020 in
O.P.(C)No.446 of 2021 & :-8-:
C.R.P.No.81 of 2021
O.S.No.163 of 1977 on the file of the 1 st Additional District Court,
Ernakulam, have filed this civil revision petition, under Section 115
of the Code of Civil Procedure, 1908, seeking an order to set aside
the common order of the said court dated 06.02.2021 in that
execution petition and to dismiss that execution petition as not
maintainable in law. Respondents 1 to 3 herein, who are the decree
holders in E.P.No.565 of 2020, filed the said execution petition
seeking execution of the decree in O.S.No.163 of 1977, in terms of
the judgment of this Court in R.F.A.No.427 of 2003. The petitioners
filed objection as to the maintainability of that execution petition.
The decree holders filed E.A.No.709 of 2020 in E.P.No.565 of 2020
seeking an order of injunction restraining the 5th respondent/5th
judgment debtor from making any appointment in St.Ignatius
Vocational Higher Secondary School, Kanjiramattom. In that
execution application, the execution court passed an ad interim
injunction on 01.10.2020, which was vacated subsequently, after
hearing the judgment debtors. The decree holders filed E.A.Nos.710
of 2020, 780 of 2020 and 781 of 2020. By the impugned order
dated 06.02.2021, the execution court allowed E.A.Nos.710 of 2020
and 780 of 2020 and dismissed E.A.No.781 of 2020. The execution
court also allowed the prayers sought for in E.P.No.565 of 2020.
O.P.(C)No.446 of 2021 & :-9-:
C.R.P.No.81 of 2021
Feeling aggrieved by the order of the execution court allowing the
reliefs sought for in E.P.No.565 of 2020 in O.S.No.163 of 1977 and
also E.A.Nos.710 of 2020 and 780 of 2020, the petitioners are
before this Court in this civil revision petition.
3.1. On 23.02.2021, when this civil revision petition came up
for admission, this Court issued urgent notice on admission by
special messenger to the respondents, returnable by 26.02.2021.
On 26.02.2021, the matter was ordered to be listed on 02.03.2021,
along with O.P.(C)No.446 of 2021. On 02.03.2021, during the
course of arguments, the learned Senior Counsel for respondents 1
to 3 pointed out the necessity to call for the records in E.P.No.565
of 2020 in O.S.No.163 of 1977. Accordingly, Registry was directed
to call for the records in the execution petition, by special
messenger. On the interim relief sought for in I.A.No.1 of 2020,
i.e., an order to stay the operation of the common order dated
06.02.2021 in E.P.No.565 of 2020 and in E.A.Nos.710 of 2020 and
780 of 2020 in O.S.No.163 of 1977, the learned Senior Counsel for
respondents 1 to 3/decree holders in E.P.No.565 of 2020 had
undertaken that the decree holders will not press for further steps
in that execution petition, for a period of two weeks. The said
undertaking given by the learned Senior Counsel, on behalf of the
O.P.(C)No.446 of 2021 & :-10-:
C.R.P.No.81 of 2021
decree holders in E.P.No.565 of 2020, was recorded. The said
undertaking, which was extended from time to time, is still in force.
3.2. On 08.03.2021, when this case came up for
consideration along with the connected matter, during the course of
arguments, on a specific query made by this Court, the learned
Senior Counsel for respondents 1 to 3 submitted that the 1 st
respondent in both these cases, who is the Vicar of St.Ignatius
Orthodox Syrian Church, is the one appointed in terms of the 1934
Constitution, who is conducting services, and that no parallel
services are being conducted in the Church. The said submission
made by the learned Senior Counsel was recorded. On 29.03.2021,
respondents 1 to 3/decree holders in E.P.No.565 of 2020 have filed
I.A.No.2 of 2021, under Order XLI Rule 27 of the Code of Civil
Procedure, 1908, seeking an order to accept additional documents
as Annexures R2(a) to R2(c).
4. Heard Sri.P.Raveendran, the learned Senior Counsel for
the petitioner in O.P.(C).No.446 of 2021, Sri.P.Viswanathan, the
learned Senior Counsel for the petitioners in C.R.P.No.81 of 2021,
Sri.S.Sreekumar, the learned Senior Counsel for respondents 1 to 3
in O.P.(C)No.446 of 2021, Sri.George Thomas Mevada, the learned
Senior Counsel for respondents 1 to 3 in C.R.P.No.81 of 2021 and
O.P.(C)No.446 of 2021 & :-11-:
C.R.P.No.81 of 2021
also the learned Government Pleader appearing for the 8th
respondent District Educational Officer in O.P.(C).No.446 of 2021.
By the order dated 04.06.2021, both sides were asked to clarify on
the undertaking referred to in Para.20 of the impugned order dated
06.02.2021. On 17.06.2021, the learned counsel for respondents 1
to 3 in C.R.P.No.81 of 2021 submitted a notes of arguments dated
16.06.2021, along with I.A.No.3 of 2021 to accept the same on file.
Thereafter, further arguments were heard on 21.06.2021 and
30.06.2021.
5. O.S.No.163 of 1977 on the file of the First Additional
District Court, Ernakulam was one originally instituted before the
Munsiff's Court, Ernakulam (as O.S.No.327 of 1976) seeking the
following reliefs;
"(a) Declaring that the 1st defendant Church, i.e., St.Ignatius
Orthodox (Jacobite) Syrian Church, Kanjiramattam shall be
administered in all matters of religious worship and
administration of assets under Moran Mar Baselius Mar Thoma
Mathews-I, Catholicose-cum-Malankara Metropolitan or
whomsoever may succeed him in his office in the Malankara
Orthodox Syrian Church and under the 3rd plaintiff or
whosoever may succeed him in his office and as per the
Constitution of Malankara Orthodox Syrian Church; that all
religious worship in the said Church shall be carried on only by
the Vicar and priests appointed by the said Malankara
Metropolitan or 3rd plaintiff or others succeeding them in
O.P.(C)No.446 of 2021 & :-12-:
C.R.P.No.81 of 2021
offices and that all administration of the 1 st defendant Church,
its institutions, chapels and assets shall be carried on under
the constitution of Malankara Orthodox Syrian Church,
originally passed on 26.12.1934 and as amended
subsequently;
(b) Restraining by injunction defendants 2 to 17 from
receiving or causing to receive defendants 18 to 22 in the
plaint schedule Church and properties or from expending any
income of the 1st defendant Church for the benefit of or at the
command or instance of defendants 19 to 22 and restraining
defendants 18 to 22 from entering or interfering with the
religious worship in or administration of the 1 st defendant
Church, its cemetery, chapel, institutions and assets and
restraining defendants 3 and 5 to 17 from carrying on any
administration of the assets of the 1 st defendant Church, its
chapel and institutions except under the 3 rd plaintiff or
whomsoever may succeed him in office and under the
Constitution;
(c) Directing the contesting defendants to pay the plaintiffs the
costs of this suit;
(d) Granting such other reliefs to preserve the 1 st defendant
Church as a parish Church of the Malankara Orthodox Syrian
Church."
5.1. O.S.No.327 of 1976 was subsequently transferred to the
Special Court for trial and disposal of cases pertaining to Malankara
Church disputes, namely, the First Additional District Court,
Ernakulam, and was renumbered as O.S.No.163 of 1977. By the
judgment dated 13.10.2003, the trial court dismissed the suit for
O.P.(C)No.446 of 2021 & :-13-:
C.R.P.No.81 of 2021
want of sanction under Section 92 of the Code of Civil Procedure,
1908. The judgment and decree of the trial court was under
challenge before this Court in R.F.A.No.427 of 2013, by the
plaintiffs. By the judgment dated 11.02.2020, this Court allowed
that appeal, setting aside the impugned judgment and decree and
consequently decreed O.S.No.163 of 977 declaring that the 1 st
defendant Church, namely, St.Ignatius Orthodox (Jacobite) Syrian
Church, Kanjiramattom, shall be administered in all matters of
religious worship and administration of assets as per the 1934
Constitution.
5.2. A reading of the judgment of this Court dated
11.02.2020 in R.F.A.No.427 of 2003 would show that, though the
defendants urged a contention that St.Ignatius Orthodox (Jacobite)
Syrian Church, Kanjiramattom is not a constituent of the Malankara
Church, but an independent Church established by the members of
the Parish, without affirming allegiance to the 1934 Constitution, it
was conceded before this Court by the learned Senior Counsel, as
instructed by the learned counsel for the defendants, that this
contention is not being pressed and therefore, the defendants admit
that the 1934 Constitution is applicable. Taking note of the above
stand taken by the defendants and also the law laid down by the
O.P.(C)No.446 of 2021 & :-14-:
C.R.P.No.81 of 2021
Apex Court in P.M.A. Metropolitan v. Moran Mar Marthoma [AIR
1995 SC 2001] and K.S. Varghese v. St.Peter's and St.Paul's
Syrian Orthodox Church [(2017) 15 SCC 333], this Court held
that, merely because O.S.No.163 of 1977 has been dismissed by
the trial court finding it to be bad for want of leave, the defendants
cannot claim control or management of the Church, contrary to the
declarations in the aforesaid judgments; and therefore, the suit
deserves to be decreed to that extent. Consequently, this Court
decreed the suit, declaring that the 1 st defendant Church, namely
St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattom,
shall be administered in all matters of religious worship and
administration of assets as per the 1934 Constitution. Paragraphs 3
to 7 and also the operative portion of the judgment dated
11.02.2020 read thus;
"3. The plaintiffs assert that the Church in question is to be
governed only by the 1934 Constitution of the Malankara
Church and have sought, inter alia, a declaration that it should
be administered in all matters of religious worship under the
Catholicos cum Malankara Metropolitan and under the diocesan
metropolitan of the Malankara Church. Consequential
injunctions were also sought against the defendants from
interfering with the religious worship and in the administration
of the Church, along with its other institutions, on the assertion
that these can be done only under the above mentioned 1934
O.P.(C)No.446 of 2021 & :-15-:
C.R.P.No.81 of 2021
Constitution.
4. When one goes through the pleadings on record, it becomes
indubitable that the primary point of disputes between the
parties are with RFA No.427/03 respect to the management
and control of the Church and the crucial question is whether it
is constituent of the Malankara Church and therefore, liable to
be governed under the 1934 Constitution. I say this because,
while the plaintiffs assert that the Church is to be governed
only under the 1934 Constitution, the defendants-who concede
that it is a part of the Malankara Church-contend that it can be
governed only under the 'Udampady', dated 18.05.1103(ME)
executed between the members of the Parish.
5. Be that so, it is now affirmatively settled by the Hon'ble
Supreme Court, through the judgments in P.M.A.
Metropolitan v. Moran Mar Marthoma [AIR 1995 SC
2001] and K.S. Varghese and others v. St.Peter's and
St.Paul's Syrian Orthodox Church and others [2017 (3)
KLT 261 SC], that all Churches under the Malankara Church is
to be governed only under the 1934 Constitution. The Hon'ble
Supreme Court has also specifically mandated that all Courts in
India issue no orders contrary to this and it is thus incredible
that all the parties herein are implicitly bound by the same.
6. Of course, the defendants appear to urge a contention that
the Church in question is not a constituent of the Malankara
Church but that it is an independent Church established by the
members of the Parish without affirming allegiance to the 1934
Constitution. However, it is conceded before me today by
Sri.P.Vishwanathan, learned Senior Counsel, instructed by
Sri.K.J.Kuriachan, their learned counsel, that this contention is
not being pressed and therefore, that they admit that the said
constitution is applicable.
O.P.(C)No.446 of 2021 & :-16-:
C.R.P.No.81 of 2021
7. In the afore scenario, since the issues relating to the
management and control of Churches under the Malankara
Church are now conclusively concluded by the Hon'ble
Supreme Court in P.M.A. Metropolitan and K.S.Varghese
(supra), I am of the firm view that merely because the suit
has been dismissed by the trial court finding it to be bad for
want of leave, the defendants cannot claim control or
management of the Church, contrary to the declarations in the
afore judgments; and therefore, that the suit deserves to be
decreed to that extent.
In the conspectus of the above, I allow the appeal, setting
aside the impugned judgment and decree and consequently
decree the suit declaring that the 1st defendant Church, namely
St.Ignatius Orthodox (Jacobite) Syrian Church, Kanjiramattom,
shall be administered in all matters of religious worship and
administration of assets as per the 1934 Constitution."
(underline supplied)
5.3. After the judgment was dictated on 07.02.2020, the
matter was listed as 'to be spoken to' on 11.02.2020, at the
request of the learned counsel for the 4 th respondent, to point out
the pendency of O.S.No.17 of 2016 on the file of the First Additional
District Court, Ernakulam. The order of this Court, after hearing the
learned Senior Counsel for the 4th respondent, reads thus;
"To be spoken to
This matter has been listed today for 'being spoken to' since,
after I dictated judgment on 07.02.2020, Sri.K.J.Kuriachan,
learned counsel appearing for respondent No.4 submitted that
Sri.P.Viswanathan, learned Senior Counsel, had a further
O.P.(C)No.446 of 2021 & :-17-:
C.R.P.No.81 of 2021
submission to make, with respect to the merits of the matter.
2. In such circumstances, I have heard Sri.P.Viswanathan,
instructed by Sri.K.J.Kuriachan today.
3. The learned Senior Counsel submits that though the
declaration made by this Court that the 1934 Constitution will
apply to the Church cannot be contested at this stage, in view
of the judgments of the Hon'ble Supreme Court, he prayed
that this Court may not enter into any of the other prayers
made in the plaint, since they are no longer relevant. He
submitted that another suit has been filed by certain other
persons, who are similarly situated as the plaintiffs herein,
which is numbered as OS No.17/2016, on the files of the I
Additional District Court, Ernakulam, and that issues relating to
the conduct of elections to the management of the Church and
such other are still pending before it.
4. Even when I hear P. Viswanathan as afore, the fact remains
that on account of the judgments of the Hon'ble Supreme
Court in P.M.A. Metropolitan and K.S. Varghese (supra), it
is enjoined on this Court to declare that the Church is
governed by the 1934 Constitution and that none of the
defendents shall act in any manner contrary to the said
Constitution. This is all that this Court has done in the
judgment in question; and I, therefore, do not deem it
necessary or appropriate to modify it in any manner, even
though I hear the submissions of the learned Senior Counsel
that another suit is filed by certain other persons. In any case,
the filing of such a suit or its pendency would not in any
manner influence this suit since, admittedly, this has been filed
invoking the provisions of Order I Rule 8 of the CPC.
Consequently, this motion is closed."
O.P.(C)No.446 of 2021 & :-18-:
C.R.P.No.81 of 2021
5.4. The reliefs sought for in O.S.No.17 of 2016 filed by two
parishioners of St.Ignatius Orthodox Syrian Church, Kanjiramattom
(Ext.B1 plaint), which is pending consideration before the First
Additional District Court, Ernakualm, read thus;
"A. A mandatory injunction removing defendants 3 to 5 and all
those persons who claim to be their successors in office and
are not elected in accordance with the Malankara Sabha
Constitution of 1934 from the posts of Vicar, stewards/
trustees, respectively of the 1st defendant Church.
B. A mandatory injunction removing the 6th defendant and all
those persons who claim to be his successors in office and are
not elected in accordance with the Malankara Sabha
Constitution of 1934 and the approved constitution of the
St.Ignatius School from the post of the Manager of St.Ignatius
School belonging to the 1st defendant Church.
C. A permanent prohibitory injunction restraining defendants 3
to 5 or their agents, servants, supporters, their henchmen and
all those persons who claim to be their successors in office and
are not elected in accordance with the Malankara Sabha
Constitution of 1934 from functioning and discharging the
duties as the Vicar, stewards/trustees respectively of the 1 st
defendant Church and from interfering in any manner with the
lawful administration of the 1st defendant Church and the
management of its assets, in accordance with the Malankara
Sabha Constitution of 1934.
D. A permanent prohibitory injunction restraining defendants 3
to 8, their agents, servants, supporters and their henchmen
from causing any obstruction to the plaintiffs, their supporters
who are parishioners of the 1st defendant Church, the 2 nd
O.P.(C)No.446 of 2021 & :-19-:
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defendant and his successors-in-office, Bishops, prelates and
other functionaries under the Malankara Sabha Constitution of
1934 from conducting and attending to religious sacraments
and any other functions in the 1st defendant Church, its
institutions, its cemetery, and its other buildings and
properties.
E. A permanent prohibitory injunction restraining defendants 3
to 8, their agents, servants, supporters and their henchmen
from inducting or allowing entry into the 1 st defendant Church,
its institutions, its cemetery, and its other buildings and
properties for any purpose whatsoever, of any Priest, High
Priest, Bishop or Metropolitan who is not appointed under 1934
Constitution.
F. A mandatory injunction directing defendants 3 to 5 to
handover the administration of the 1 st defendant Church and
other buildings together with all the movable properties and all
the records retained by them belonging to the 1 st defendant
Church including the accounts containing the incomes and
expenditure of the 1st defendant Church to the 2 nd defendant or
his successor-in-office and the Managing Committee of the 1 st
defendant Church elected in accordance with the Malankara
Sabha Constitution of 1934.
G. A mandatory injunction directing defendants 3 to 5 and all
those persons who claim to be their successors-in-office to
account for the income received by them from the 1 st
defendant Church.
H. A declaration that only those parishioners who abide by
clause 4 and 7 of 1934 Constitution and confess before the
Vicar or priest appointed under 1934 Constitution alone are
entitled to participate in the Parish Assembly of the 1 st
defendant Church.
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I. Allow such other reliefs as may be prayed for and deemed fit
by this court.
J. Awarding the cost of the suit."
6. The perpetual fight between the Patriarch faction and the
Catholicos faction for managing the affairs of Malankara Orthodox
Syrian Church and for control of spiritual and temporal
management of affairs of the Parish Churches culminated in the
judgment of the Apex Court in K.S. Varghese v. St.Peter's and
St.Paul's Syrian Orthodox Church [(2017) 15 SCC 333]. The
said decision arises out of three original suits filed under Order I,
Rule 8 and Sections 26 and 92 of the Code of Civil Procedure, 1908
(for brevity, 'the Code'), for control of spiritual and temporal
management of the affairs of three Parish Churches, namely,
Kolenchery Church, Varikoli Church and Mannathur Church.
6.1. The appeals relating to Kolencherry Church arose out of a
suit filed by the Patriarch faction to declare that Kolencherry Church
(1st defendant Church) its assets, including the educational
institutions are liable to be administered only in accordance with
Udampady executed on 30.12.2013; to settle a scheme for
administration of the Church and its assets; to appoint a Receiver,
conduct elections after preparing proper voters list irrespective of
their factional affiliations and to entrust management to them; and
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for a permanent injunction restraining the 3 rd defendant from
receiving the key of the Church.
6.2. The appeals relating to Varikoli Church arose out of a
suit filed by the Catholicos faction to declare that Varikoli Church
(1st defendant Church) is governed by the 1934 Constitution as
upheld by the Apex Court and defendants 2 and 3 have no right to
claim the status of trustees of the Church; for a permanent
prohibitory injunction to restrain defendants 2 and 3 from
functioning as trustees of the Church; and for a mandatory
injunction directing the 4th defendant to call for immediate
pothuyogam of the 1st defendant Church and to hold election of new
Managing Committee including trustees and Secretary in
accordance with the 1934 Constitution. In the said suit, defendants
13 to 15 raised a counter claim to cause a referendum to ascertain
the allegiance of the Parishioners of the 1st defendant Church; to
declare that the Church and its assets are to be governed in
accordance with the faith and will professed by majority of the
Parishioners of the Church; to pass a final decree declaring that the
Church and its assets be administered in accordance with the
decision of majority of the Parishioners; and permanent injunction
against the 3rd defendant, his agents and religious dignitaries and
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those who are not accepting spiritual supremacy of Patriarch of
Antioch and All the East.
6.3. The appeals relating to Mannathur Church arose out of a
suit filed by the Catholicos faction to declare that Mannathur Church
(1st defendant Church) is administered by the 1934 Constitution; to
declare that defendants 3 to 5 have no right or authority to act as
its trustees; permanent prohibitory injunction against defendants 3
to 5 from functioning as its trustees; to direct the 2 nd defendant to
call general body for holding elections; and injunction against
changing the name of the 1st defendant Church.
6.4. In K.S. Varghese, based on the findings in the
judgment, the main conclusions of the Apex Court in Para.228 read
thus;
"228. Resultantly, based on the aforesaid findings in the
judgment, our main conclusions, inter alia, are as follows:
228.1. Malankara Church is Episcopal in character to the
extent it is so declared in the 1934 Constitution. The 1934
Constitution fully governs the affairs of the Parish Churches
and shall prevail.
228.2. The decree in the 1995 judgment is completely in tune
with the judgment. There is no conflict between the judgment
and the decree.
228.3. The 1995 judgment arising out of the representative
suit is binding and operates as res judicata with respect to the
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matters it has decided, in the wake of provisions of Order I
Rule 8 and Explanation 6 to Section 11 CPC. The same binds
not only the parties named in the suit but all those who have
interest in the Malankara Church. Findings in earlier
representative suit, i.e., Samudayam suit are also binding on
Parish Churches/Parishioners to the extent issues have been
decided.
228.4. As the 1934 Constitution is valid and binding upon the
Parish Churches, it is not open to any individual Church, to
decide to have their new Constitution like that of 2002 in the
so-called exercise of right under Article 25 and Article 26 of
the Constitution of India. It is also not permissible to create a
parallel system of management in the Churches under the
guise of spiritual supremacy of the Patriarch.
228.5. The Primate of Orthodox Syrian Church of the East is
Catholicos. He enjoys spiritual powers as well, as the
Malankara Metropolitan. Malankara Metropolitan has the prime
jurisdiction regarding temporal, ecclesiastical and spiritual
administration of Malankara Church subject to the riders
provided in the 1934 Constitution.
228.6. Full effect has to be given to the finding that the
spiritual power of the Patriarch has reached to a vanishing
point. Consequently, he cannot interfere in the governance of
Parish Churches by appointing Vicar, Priests, Deacons, Prelates
(High Priests), etc. and thereby cannot create a parallel
system of administration. The appointment has to be made as
per the power conferred under the 1934 Constitution on the
concerned Diocese, Metropolitan, etc. concerned.
228.7. Though it is open to the individual member to leave a
Church in exercise of the right not to be a member of any
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Association and as per Article 20 of the Universal Declaration
of Human Rights, the Parish Assembly of the Church by
majority or otherwise cannot decide to move Church out of the
Malankara Church. Once a trust, is always a trust.
228.8. When the Church has been created and is for the
benefit of the beneficiaries, it is not open for the beneficiaries,
even by a majority, to usurp its property or management. The
Malankara Church is in the form of a trust in which, its
properties have vested. As per the 1934 Constitution, the
parishioners though may individually leave the Church, they
are not permitted to take the movable or immovable
properties out of the ambit of 1934 Constitution without the
approval of the Church hierarchy.
228.9. The spiritual power of Patriarch has been set up by the
appellants clearly in order to violate the mandate of the 1995
judgment of this Court which is binding on the Patriarch,
Catholicos and all concerned.
228.10. As per the historical background and the practices
which have been noted, the Patriarch is not to exercise the
power to appoint Vicar, Priests, Deacons, Prelates etc. Such
powers are reserved to other authorities in the Church
hierarchy. The Patriarch, thus, cannot be permitted to exercise
the power in violation of the 1934 Constitution to create a
parallel system of administration of Churches as done in 2002
and onwards.
228.11. This Court has held in 1995 that the unilateral
exercise of such power by the Patriarch was illegal. The said
decision has also been violated. It was only in the alternative
this Court held in the 1995 judgment that even if he has such
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power, he could not have exercised the same unilaterally
which we have explained in this judgment.
228.12. It is open to the Parishioners to believe in the spiritual
supremacy of Patriarch or apostolic succession but it cannot be
used to appoint Vicars, Priests, Deacons, Prelates, etc. in
contravention of the 1934 Constitution.
228.13. Malankara Church is episcopal to the extent as
provided in the 1934 Constitution, and the right is possessed
by the Diocese to settle all internal matters and elect their
own Bishops in terms of the said Constitution.
228.14. Appointment of Vicar is a secular matter. There is no
violation of any of the rights encompassed under Article 25
and Article 26 of the Constitution of India, if the appointment
of Vicar, Priests, Deacons, Prelates (High Priests), etc. is made
as per the 1934 Constitution. The Patriarch has no power to
interfere in such matters under the guise of spiritual
supremacy unless the 1934 Constitution is amended in
accordance with law. The same is binding on all concerned.
228.15. Udampadis do not provide for appointment of Vicar,
Priests, Deacons, Prelates etc. Even otherwise once the 1934
Constitution has been adopted, the appointment of Vicar,
Priests, Deacons, Prelates (high priests), etc. is to be as per
the 1934 Constitution. It is not within the domain of the
spiritual right of the Patriarch to appoint Vicar, Priests etc. The
spiritual power also vests in the other functionaries of
Malankara Church.
228.16. The functioning of the Church is based upon the
division of responsibilities at various levels and cannot be
usurped by a single individual howsoever high he may be. The
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division of powers under the 1934 Constitution is for the
purpose of effective management of the Church and does not
militate against the basic character of the Church being
Episcopal in nature as mandated thereby. The 1934
Constitution cannot be construed to be opposed to the concept
of spiritual supremacy of the Patriarch of Antioch. It cannot as
well, be said to be an instrument of injustice or vehicle of
oppression on the Parishioners who believe in the spiritual
supremacy of the Patriarch.
228.17. The Church and the cemetery cannot be confiscated
by anybody. It has to remain with the parishioners as per the
customary rights and nobody can be deprived of the right to
enjoy the same as a parishioner in the Church or to be buried
honourably in the cemetery, in case he continues to have faith
in the Malankara Church. The property of the Malankara
Church in which is also vested the property of the Parish
Churches, would remain in trust as it has for the time
immemorial for the sake of the beneficiaries and no one can
claim to be owners thereof even by majority and usurp the
Church and the properties.
228.18. The faith of Church is unnecessarily sought to be
divided vis-à-vis the office of Catholicos and the Patriarch as
the common faith of the Church is in Jesus Christ. In fact an
effort is being made to take over the management and other
powers by raising such disputes as to supremacy of Patriarch
or Catholicos to gain control of temporal matters under the
garb of spirituality. There is no good or genuine cause for
disputes which have been raised.
228.19. The authority of Patriarch had never extended to the
government of temporalities of the Churches. By questioning
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the action of the Patriarch and his undue interference in the
administration of Churches in violation of the 1995 judgment,
it cannot be said that the Catholicos faction is guilty of
repudiating the spiritual supremacy of the Patriarch. The
Patriarch faction is to be blamed for the situation which has
been created post 1995 judgment. The property of the Church
is to be managed as per the 1934 Constitution. The judgment
of 1995 has not been respected by the Patriarch faction which
was binding on all concerned. Filing of writ petitions in the
High Court by the Catholicos faction was to deter the
Patriarch/his representatives to appoint the Vicar, etc. in
violation of the 1995 judgment of this Court.
228.20. The 1934 Constitution is enforceable at present and
the plea of its frustration or breach is not available to the
Patriarch faction. Once there is Malankara Church, it has to
remain as such including the property. No group or
denomination by majority or otherwise can take away the
management or the property as that would virtually
tantamount to illegal interference in the management and
illegal usurpation of its properties. It is not open to the
beneficiaries even by majority to change the nature of the
Church, its property and management. The only method to
change management is to amend the Constitution of 1934 in
accordance with law. It is not open to the Parish Churches to
even frame bye-laws in violation of the provisions of the 1934
Constitution.
228.21. The Udampadies of 1890 and 1913 are with respect
to administration of Churches and are not documents of the
creation of the Trust and are not of utility at present and even
otherwise cannot hold the field containing provisions
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inconsistent with the 1934 Constitution, as per Section 132
thereof. The Udampady also cannot hold the field in view of
the authoritative pronouncements made by this Court in the
earlier judgments as to the binding nature of the 1934
Constitution.
228.22. The 1934 Constitution does not create, declare,
assign, limit or extinguish, whether in present or future any
right, title or interest, whether vested or contingent in the
Malankara Church properties and only provides a system of
administration and as such is not required to be registered. In
any case, the Udampadis for the reasons already cited, cannot
supersede the 1934 Constitution only because these are
claimed to be registered.
228.23. In otherwise episcopal Church, whatever autonomy is
provided in the Constitution for the Churches is for
management and necessary expenditure as provided in
Section 22, etc.
228.24. The formation of 2002 Constitution is the result of
illegal and void exercise. It cannot be recognised and the
parallel system created thereunder for administration of Parish
Churches of Malankara Church cannot hold the field. It has to
be administered under the 1934 Constitution.
228.25. It was not necessary, after amendment of the plaint in
Mannathur Church matter, to adopt the procedure once again
of representative suit under Order I Rule 8 CPC. It remained a
representative suit and proper procedure has been followed. It
was not necessary to obtain fresh leave.
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228.26. The 1934 Constitution is appropriate and adequate for
management of the Parish Churches, as such there is no
necessity of framing a scheme under Section 92 of CPC.
228.27. The plea that in face of the prevailing dissension
between the two factions and the remote possibility of
reconciliation, the religious services may be permitted to be
conducted by two Vicars of each faith cannot be accepted as
that would amount to patronising parallel systems of
administration.
228.28. Both the factions, for the sake of the sacred religion
they profess and to pre-empt further bickering and
unpleasantness precipitating avoidable institutional
degeneration, ought to resolve their differences if any, on a
common platform if necessary by amending the Constitution
further in accordance with law, but by no means, any attempt
to create parallel systems of administration of the same
Churches resulting in law and order situations leading to even
closure of the Churches can be accepted." (underline supplied)
6.5. In K.S. Varghese, before the Apex Court it was
contended that the judgment in Most Rev. P.M.A. Metropolitan
v. Moran Mar Marthoma [(1995) Supp. 4 SCC 286] has no
binding effect. It would be having only the evidentiary value under
Section 13 of the Indian Evidence Act, 1872. Repelling the said
contention, the Apex Court held that, the finding in the 1995
judgment, which operates as res judicata is about the binding
nature of the 1934 Constitution on the Parishioners and Parish
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Churches. The Court has made an exception under the aforesaid
judgment with respect to Knanaya Church. It is not open to the
Parishioners to contend that they can have their independent
Constitution and not bound by the 1934 Constitution. The 1995
judgment cannot be misconstrued so as to confer the aforesaid
right upon the Parishioners. The 1995 judgment is clear,
unequivocal and unambiguous with respect to binding nature of the
1934 Constitution.
6.6. In K.S. Varghese it was contended that the Parish
Churches, even after the 1934 Constitution, can decide to make
their own Constitution in the exercise of their fundamental right to
freedom of religion under Article 25 of the Constitution of India, so
as to follow the faith of spiritual supremacy of the Patriarch.
Repelling the said contention, the Apex Court opined that, it would
not be open to any faction or group to adopt any particular system
of management of Churches and to have a parallel system of
managing authorities under the guise of spiritual supremacy. The
mismanagement of Church and chaos cannot be permitted to be
created for temporal gains or otherwise. There is a system of
management and the spiritual aspect, which has been claimed
under the guise of spiritual supremacy, is an effort to illegally take
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over the management of the Churches by rival factions in
derogation of delegation of powers. The power with respect to
Orthodox Syrian Church of the East is the Primate, i.e., Catholicos.
Though the Primate of the Orthodox Syrian Church is the Patriarch
of Antioch, certain spiritual powers have also been vested in
Malankara Metropolitan, as per Section 94 of the 1934 Constitution.
The prime jurisdiction regarding the temporal, ecclesiastical and
spiritual administration of the Malankara Church is vested with the
Malankara Metropolitan subject to provisions of the Constitution
and under the guise of spiritual supremacy an effort is being made
to obtain the appointments of Vicars and Priests as parallel
authorities so as to manage the Churches and to render religious
services under the guise of Patriarch. On the other hand, there are
already Vicars and other authorities appointed as per the 1934
Constitution. Thus, under the garb of spiritual supremacy which had
reached a vanishing point due to the establishment of Catholicos
and Kalpana, and the 1934 Constitution which has been accepted
and is binding, a parallel system of governance of Churches would
not be in the interest of the Church and would destroy it.
6.7. In K.S. Varghese, before the Apex Court, it was
submitted that, the Parishioners own the property of the Parish
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Church and the Cemetery and they cannot be deprived of that right
by reason of the office holders of the Parish Churches by not
subscribing to the 1934 Constitution. The attempt by Catholicos is
to take away ancient Churches and bar the Parishioners from entry
to the Churches and Cemetery. Repelling the said submission, the
Apex Court held that, the properties would always remain to be
Malankara Church properties. Only office-holders have to subscribe
to the 1934 Constitution as held by the Court. The Parishioners can
take no Church property away, neither Catholicos faction by
majority and the submission is based on the misconception as to
the nature of rights in such property. It has to remain in Malankara
Church. Neither the Church nor the Cemetery can be confiscated by
anybody. It has to remain with Parishioners as per the customary
rights and nobody can be deprived of right one enjoys being a
Parishioner in the Church or to be buried honourably in the
cemetery, in case he continues to have faith in Malankara Church.
It passes comprehension as to how irreconcilable differences in
faith have been sought to be created in flimsy manner to divide
Church into the Patriarch and Catholicos factions whereas they are
part of the Malankara Church, whereas the dominant faith is the
common, Malankara Church is one, and Orthodox Syrian Church is
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the same. Only intention differs. Hence, law and order situation has
arisen which cannot be a scenario for spiritual attainments with
embodiment of tolerance and equality of all human beings and
living creatures. The depth in sight beyond the sensual eye sight is
required for spiritual gains. The Apex Court observed that, for the
reasons best known to the parties, fight is going on regarding the
management which is wholly uncalled for. If Church has to survive,
obviously this must stop and let the blessings of the Christ fall upon
the believers, actual followers of his teaching. This is the only way
by which we can expect that peace will come to the Church. For the
unrest and ugly situation no reason, good, bad or otherwise exist
which can be legally recognised.
6.8. In K.S. Varghese, the Apex Court noticed that, faith is
tried to be unnecessarily divided vis-a-vis the office of Catholicos
and the Patriarch. Faith of Church is in the Jesus Christ. An effort is
being made to take over the management and other powers by
such an action just to gain control of temporal matters under the
garb of spirituality. Even if Vicar performs the functions, which are
religious, there would not be infringement of the rights under
Article 25 and Article 26 of constitution of India in case the
Diocesan Metropolitan appoints Vicar as provided in the
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Constitution and it is clear that the Patriarch of Antioch has not
reserved this power to himself. As a matter of fact the 1995
judgment settled such disputes, between the parties, in which the
Court tried its best to take care of the prevailing situation while
passing the decree.
6.9. In K.S. Varghese, it was argued before the Apex Court
that the 1995 judgment was rendered to reconcile the two warring
faction. The conduct of the Catholicos in refusing to recognise the
Patriarch undermines the 1995 judgment. The Apex Court noticed
that, as a matter of fact when execution of 1995 judgment was
pending, in spite of appointment of Mr. Justice Malimath with
consent of the parties to hold the elections, the Patriarch faction
took up different stance in gross violation of dictum, and there was
breach of Constitution on its part. It was bent upon to circumvent
1995 judgment and created illegally a parallel system of
administration and also formed the Constitution 2002 which was
totally uncalled for and an impermissible action. After formation of
the Constitution of 2002 they held separate meetings of Patriarch
groups, and entire system was usurped. This resulted in various law
and order problems as projected in the case and Parish Churches
remained closed for quite some time. Once there is a Malankara
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Church it has to remain as such. No group or denomination can
take away the Church and form another group for its management
as that would virtually tantamount to usurping its properties and
the Church itself. When the Church has been created and is for the
benefit of beneficiaries, it is not open for beneficiaries even by
majority to usurp its property or management.
6.10. In K.S. Varghese, relying upon the Universal
Declaration of Human Rights, which recognises the right to form an
association, and further goes on to state that no one can be
compelled to be a part of an association, it was argued before the
Apex Court that the right to form an association under Article 19(1)
(c) also carries with it the negative right, i.e., the right not to be a
part of an association. It was argued that, the 1995 judgment
cannot be read as if the appellant Church cannot leave the
Malankara Association, as the same would result in infringement of
the fundamental rights of the majority of the Parishioners, who
belong to Patriarch faction. The Apex Court repelled the said
contentions for various reasons. Firstly, no one can deny the right
under Article 20 of the Universal Declaration of Human Rights. No
one may be compelled to belong to an association. There is no
compulsion with any of the Parishioners to be part of the Malankara
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Church or Parish Church. There can be an exercise of unfettered
volition not to be a part of an association but the question is
whether one can form another association within the same
association and to run a parallel system of management of the very
same Church, which is not permissible. Leaving a Church is not the
right denied but the question is whether the existing Malankara
Church can be regulated otherwise than by the 1934 Constitution.
If the effort of certain group of Patriarch otherwise is to form a new
Constitution of 2002 to appoint Vicars, Priests, etc., giving a go by
to the 1934 Constitution and to form a new Church under the guise
of same Malankara Church, it is not permissible. The Malankara
Church, its properties and other matters are to be governed by the
1934 Constitution and even majority of Parishioners has no right to
take away and usurp the Church itself or to create new system of
management contrary to the 1934 Constitution. It was a trust
created as Malankara Church that is supreme, for once a trust
always a trust.
6.11. In K.S. Varghese, the Apex Court has laid down that,
as per the 1934 Constitution it is clear that while individual
Parishioners may choose to leave the Church, there is no question
of even a majority of the Parishioners in the Parish Assembly by
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themselves being able to take the movable or immovable properties
out of the ambit of the 1934 Constitution, without the approval of
the Church hierarchy. The Parish Assembly can pass bye-laws that
are not inconsistent with the principles contained in the
Constitution. The Diocesan Assembly or the Diocesan Council can
also suggest and submit to the Managing Committee through the
Rule Committee for consideration as provided in Section 129. All
agreements, offices and practices which are not consistent with the
provisions of the Constitution are made ineffective and have been
annulled as provided in Section 132 contained in Part 13
'Miscellaneous'.
6.12. In K.S. Varghese, it was argued that, by majority,
decision can be taken to opt out of the 1934 Constitution by the
Parish Assembly and to form a new Church under a new name, as
has been done in 2002. The Apex Court opined that the
Constitution prohibits such a course. Even bye-laws that do not
conform to Constitution cannot be framed and that has to be placed
before Rule Committee under Sections 126, 127 and 129. In
existing system of Malankara Church, a Parish Church, which is a
part of Malankara Church, cannot be usurped even by majority in
Church under the guise of formation of new Church. The existing
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majority at a given time in any Parish Church cannot be permitted
to take away the assets of the Church at the expense of those who
adhere to the original Trust.
6.13. In K.S. Varghese, the Apex Court noticed that, the
majority view in the 1995 judgment refused to give declaration with
respect to property in the absence of Parish Churches. However it
was observed that the 1934 Constitution shall govern and regulate
the affairs of the Parish Churches insofar as the Constitution
provides for the same. In the absence of any further prayer made,
suffice it to hold that the 1934 Constitution shall govern the affairs
of the Parish Churches in respect of temporal matters also insofar
as it so provides and discussed by the Court. The Malankara Church
is Episcopal to the extent it is so declared in the 1934 Constitution,
as held in the 1995 judgment. The 1934 Constitution governs the
affairs of Parish Malankara Churches and shall prevail. Otherwise,
also, property cannot be taken away by the majority or otherwise
and it will remain in Trust as it has been for the time immemorial
for the sake of beneficiaries. It is for the benefit of beneficiaries. No
one can become owners by majority decision or permitted to usurp
Church itself. It has to remain in perpetual succession for the
purpose it has been created a Malankara Church. The Parish
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Assembly by majority cannot take away the property and divert it
to a separate and different Church, which is not a Malankara Church
administered as per the 1934 Constitution, though it is open to
amend the 1934 Constitution. As the basic documents of creation of
Church have not been placed on record, usage and custom for
determining the competing claims of rival factions become relevant.
In K.S. Varghese, the Apex Court held that, the 2002 Constitution
cannot hold the field to govern the appellant Churches and the
1934 Constitution is binding.
6.14. In K.S. Varghese, the learned counsel appearing on
behalf of the respondents in C.A.Nos.3674, 3681 & 3683 of 2015
argued that, the educational institutions are governed by the Kerala
Education Act, 1959. Section 6 of the said Act imposes restrictions
on alienation of properties of school. The school is governed by
bye-laws which are statutorily made and approved under the said
Act and the Rules. Thus Udampady of 1913 does not govern
educational institutions. The assets of the parish Churches are to be
governed by the 1934 Constitution and that of educational
institutions as per the 1959 Act and not by Udampady of 1913. In
Para.216 of the judgment, the Apex Court held that, the learned
counsel for the respondents in CAs Nos.3674, 3681 & 3683 of 2015
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was right in submitting that educational institutions have to be run
in accordance with the provisions of the Kerala Education Act, 1959.
Educational institutions cannot be governed by the Udampady of
1913, as per Sections 6 and 7 of the Kerala Education Act, 1959.
Para.67 and 216 of the judgment read thus;
"67. Shri E.M.S. Anam, learned counsel appearing on behalf of
the respondents in CA Nos. 3674, 3681 and 3683 of 2015 has
addressed on the scope of the suit. The Church is governed by
the 1934 Constitution. The plaint is silent with respect to the
properties. There is no pleading regarding the acquisition of
the properties, when and how they were acquired, what was
the purpose of the acquisition, from where did the
consideration come, and from whom the properties were
purchased. ............ Udampady does not create, declare, assign,
limit or extinguish any right over the immovable property and
as such its registration is of no consequence. Udampady
cannot prevail over the Constitution. The contention is barred
by Order 2 Rule 2 and by virtue of Explanation 6 to Section 11
CPC. The educational institutions are governed by the Kerala
Education Act, 1959. Section 6 of the said Act imposes
restrictions on alienation of properties of school. The school is
governed by bye-laws which are statutorily made and
approved by the said Act and the Rules. Thus Udampady of
1913 does not govern educational institutions. Elections have
been duly held as held by two courts. The reliefs claimed in the
suit are not bona fide. Parish properties do not vest in the
parishioners. The assets of the parish Churches are to be
governed by the 1934 Constitution and that of educational
institutions as per the 1959 Act and not by Udampady of 1913.
O.P.(C)No.446 of 2021 & :-41-:
C.R.P.No.81 of 2021
xxx xxx xxx
216. Shri Anam, learned counsel, was right in submitting that
educational institutions have to be run in accordance with the
provisions of the Kerala Education Act. Educational institutions
cannot be governed by the Udampady of 1913 as per Sections
6 and 7 of the Kerala Education Act, 1959." (underline supplied)
7. In Mathews Mar Koorilos (dead) v. M. Pappy
(dead) [(2018) 9 SCC 672] a Three-Judge Bench of the Apex
Court observed that the issue of spiritual and temporal authority
between Malankara Church and the Patriarch of Antioch has been
the subject matter of several rounds of litigations in various matters
right from the year 1879. It is not necessary for the Court to
elaborately refer to those litigations; suffice to refer the litigations
which led to the Constitution Bench judgment in Moram Mar
Basselios Catholicos v. Thukalan Paulo Avira [AIR 1959 SC
31]; the judgment of Three-Judges Bench in Most Rev. P.M.A.
Metropolitan v. Moran Mar Marthoma [(1995) Supp. 4 SCC
286] and the latest judgment in K.S. Varghese v. St.Peter's and
St.Paul's Syrian Orthodox Church [(2017) 15 SCC 333].
7.1. Before the Three-Judge Bench it was contended that the
conclusions arrived in K.S. Varghese are not in consonance with
the judgment in Most Rev. P.M.A. Metropolitan. Repelling the
said contention, the Three-Judge Bench held that the conclusions in
O.P.(C)No.446 of 2021 & :-42-:
C.R.P.No.81 of 2021
Para.228 of K.S. Varghese are well in consonance with Thukalan
Paulo Avira and Most Rev. P.M.A. Metropolitan judgments. The
detailed discussions and conclusions arrived at in K.S. Varghese
settle the disputes between the appellant Patriarch and the
respondent Malankara.
7.2. In Mathews Mar Koorilos the Three-Judge Bench
reiterated that, as per the consistent view taken in Thukalan
Paulo Avira, Most Rev. P.M.A. Metropolitan and K.S.
Varghese, 1934 Constitution is valid and binding upon the
Parishioners. The Parish Church has to be managed as per the
powers conferred under the 1934 Constitution. It is not open to any
individual Church to have a parallel system of management in the
Churches under the guise of spiritual supremacy in the Patriarch. As
per the consistent findings in the above judgments, the prime
jurisdiction with respect to the temporal, ecclesiastical and spiritual
administration of the Malankara Church is vested with Malankara
Metropolitan and other authorities appointed by Malankara
Metropolitan. Malankara Metropolitan enjoys all the temporal,
ecclesiastical and spiritual administrative powers [Para.145 of K.S.
Varghese]. As held in K.S. Varghese, full effect has to be given to
the finding that the spiritual power of the Patriarch has reached to a
O.P.(C)No.446 of 2021 & :-43-:
C.R.P.No.81 of 2021
vanishing point. Consequently, he cannot interfere in the
governance of Parish Churches by appointing Vicar, Priests,
Deacons, Prelates (High Priests), etc. and thereby cannot create a
parallel system of administration.
7.3. In Mathews Mar Koorilos the Three-Judge Bench held
that the conclusions in Para.228 of K.S. Varghese are well in
consonance with Thukalan Paulo Avira and Most Rev. P.M.A.
Metropolitan judgments. The detailed discussions and conclusions
arrived at in K.S. Varghese settle the disputes between the
appellant Patriarch and the respondent Malankara. The Three-Judge
Bench reiterated that, as per the consistent view taken in
Thukalan Paulo Avira, Most Rev. P.M.A. Metropolitan and K.S.
Varghese, 1934 Constitution is valid and binding upon the
Parishioners. The Parish Church has to be managed as per the
powers conferred under the 1934 Constitution. It is not open to any
individual Church to have a parallel system of management under
the guise of spiritual supremacy in the Patriarch. As held in K.S.
Varghese, full effect has to be given to the finding that the
spiritual power of the Patriarch has reached to a vanishing point.
Consequently, he cannot interfere in the governance of Parish
Churches by appointing Vicar, Priests, Deacons, Prelates (High
O.P.(C)No.446 of 2021 & :-44-:
C.R.P.No.81 of 2021
Priests), etc. and thereby cannot create a parallel system of
administration.
8. In Baby C.J. v. Fr. Jiju Varghese [2019 (2) KHC
692], arising out of the order dated 10.07.2018 in F.A.O.No.96 of
2018 and connected cases, the Apex Court held that, as the
controversy in question has been finally decided on 03.07.2017, in
the case of K.S. Varghese [(2017) 15 SCC 333], which holds the
field, nothing further survives in the matters for adjudication.
Consequently, the appeals were disposed of in view of the above
judgment and the Apex Court directed all the concerned courts and
authorities to act in terms of that judgment. In the said decision,
the Apex Court made it clear that, let there be no multiplicity of the
litigation on this aspect any more in various courts and that, the
decision rendered in representative suit is binding on all.
8.1. In Fr. Issac Mattammel Cor-Episcopa v. St.Mary's
Orthodox Syrian Church [(2019) 10 SCC 606], after quoting
Para.228 of the decision in K.S. Varghese [(2017) 15 SCC 333],
the Apex Court reiterated that, there can be no further litigation as
the decision in representative suit is binding and that, it is the
constitutional duty of all concerned to obey the judgment and order
of the Apex Court. In the said decision, it is made clear that, by the
O.P.(C)No.446 of 2021 & :-45-:
C.R.P.No.81 of 2021
decision in K.S. Varghese the Apex Court intended peace to come
in Church. The Apex Court directed the courts to decide all pending
matters following the decision in K.S. Varghese, which has been
affirmed thereafter umpteen number of times, and restrained all
the civil courts and this Court not to pass any order in violation of
the mandate of the decision in K.S. Varghese.
8.2. In Varkey U. v. Issac Nedivelil Puthenpura [2019
(3) KHC 689] a Division Bench of this Court observed that the
Apex Court in P.M.A. Metropolitan, K.S. Varghese and Mathews
Mar Koorilos has categorically stated as to what are the rights and
obligations of the disputants in Malankara Church cases and no
court in this country can take a different view on the subject.
Para.14 of the said decision reads thus;
"14. We are of the clear view that no court in this country can
take a different view on the subject reckoning the binding
pronouncements by the Apex Court in P.M.A. Metropolitan v.
Moran Mar Marthoma [(1995) Supp. 4 SCC 286], K.S.
Varghese v. St.Peter's and Paul's Syrian Orthodox
Church [(2017) 15 SCC 333] and Mathews Mar Koorilos
v. Pappy [(2018) 9 SCC 672]. Now it is very clear that the
Supreme Court has categorically stated as to what are the
rights and obligations of the disputants in Malankara Church
cases and no court in this country can take a different view on
the subject. It has been clarified by the Supreme Court by an
O.P.(C)No.446 of 2021 & :-46-:
C.R.P.No.81 of 2021
order passed on 19.04.2018 in S.L.P.Nos. 33156-33159/2014
as follows:
"Leave granted.
As the controversy in question has been finally
decided in the case of K.S. Varghese v. St.Peter's
and St.Paul's Syrian Orthodox Church in CA No.
3674 of 2015 etc. decided on 3rd July, 2017 [(2017)
15 SCC 333], in which it has been laid down that
1934 Constitution holds the field, nothing further
survives in the matters for adjudication.
Consequently, the appeals stand disposed of in
terms of the above judgment.
Let all the concerned courts and authorities act in
terms of the judgment. Let there be no multiplicity
of the litigation on this aspect any more in the
various courts. The decision rendered in
representative suit is binding on all."
8.3. In Baby C.J. [2019 (2) KHC 692] the Apex Court held
that, as the controversy in question has been finally decided in the
case of K.S. Varghese which holds the field, nothing further
survives in the matters for adjudication and that, the decision
rendered in representative suit is binding on all. In Fr. Issac
Mattammel Cor-Episcopa [(2019) 10 SCC 606], after quoting
Para.228 of the decision in K.S. Varghese, the Apex Court
reiterated that, there can be no further litigation as the decision in
representative suit is binding and that, it is the constitutional duty
O.P.(C)No.446 of 2021 & :-47-:
C.R.P.No.81 of 2021
of all concerned to obey the judgment and order of the Apex Court.
By the decision in K.S. Varghese the Apex Court intended peace to
come in Church.
9. On 30.09.2020, the decree holders filed E.P.No.565 of
2020 before the First Additional District Court, Ernakulam, to
execute the decree in O.S.No.163 of 1977, in terms of the
judgment of this Court dated 11.02.2020 in R.F.A.No.427 of 2003.
Column No.9 of the execution petition reads thus;
"9. Decree
As per the decree, it is declared that the 1 st defendant Church/
St.Ignatius Orthodox Syrian Church, Kanjiramattom be
administered in all matters of religious worship and
administration of assets as per the 1934 Constitution by
allowing the Regular First Appeal R.F.A.No.427 of 2003 of the
High Court of Kerala dated 11.02.2020."
Column No.12 of the execution petition, which deals with the mode
in which the assistance of the court is required, reads thus;
"12. The mode in which the assistance of the court is required;
(a) Issue warrant against the judgment debtors and to
direct them to handover the
i. Key of the Church;
ii. Key of the office room (parsonage);
iii. Key of the Parish Hall;
iv. Key of the offertory boxes installed in five places;
v. Documents of landed properties of the Church;
O.P.(C)No.446 of 2021 & :-48-:
C.R.P.No.81 of 2021
vi. Registers such as Marriage Register, Baptism
Register, funeral register, etc.;
vii. Several articles such as gold plated cross, silver
plated cross, wooden cross and other items being
used in the Church;
viii. The ambulance vehicle No.KL-39/G-9734
belonging to the Church;
ix. Key/all keys of St.Ignatius Vocational and Higher
Secondary School building.
(b) issue order of attachment of the properties of judgment
debtors' ensuring the execution of the decree.
(c) issue such other reliefs that are deemed fit and proper
in the course of the proceeding of execution being
conducted by this Hon'ble Court."
9.1. On 05.11.2020, the judgment debtors filed their
objection to E.P.No.565 of 2020 in O.S.No.163 of 1977, contending
that the execution petition is really misconceived, since there is no
injunction, either mandatory or prohibitory, in terms of the
judgment in R.F.A.No.427 of 2003. There is no allegation in the
execution petition that the judgment debtors have violated the
decree. As there is no decree in R.F.A.No.427 of 2003 to hand over
the articles mentioned in column No.12 of the execution petition,
no arrest warrant can be issued for handing over those articles.
O.S.No.17 of 2016, a suit instituted under Section 92 read with
Order I Rule 8 of the Code of Civil Procedure, is now pending before
O.P.(C)No.446 of 2021 & :-49-:
C.R.P.No.81 of 2021
the First Additional District Court, Ernakulam, for various reliefs,
including mandatory injunction for removal of the judgment debtors
in E.P.No.565 of 2020 from the management of the Church and the
School and also for handing over the administration, including the
articles mentioned in column No.12 of the said execution petition.
Arrest and attachment against the respondents cannot be ordered,
as they have not violated the decree. Eo-nominee plaintiffs 2 to 4 in
O.S.No.163 of 1977 are alive and the execution petition filed as
E.P.No.565 of 2020, without them in the party array, is not
maintainable. The Church, the 1st defendant in O.S.No.163 of 1977,
is not made a party to the execution petition. Moreover, decree
holders 2 and 3 in E.P.No.565 of 2020 have no locus standi to
institute that execution petition, which does not even disclose their
competence to institute the same.
9.2. On 30.09.2020, along with E.P.No.565 of 2020, the
decree holders filed E.A.No.709 of 2020, under Order XXXIX Rule 1
of the Code of Civil Procedure, seeking an order of prohibitory
injunction, prohibiting the 5th judgment debtor/his successors from
effecting any sort of appointment in St.Ignatius Vocational Higher
Secondary School, Kanjiramattom, pending execution of the decree.
In the affidavit filed in support of E.A.No.709 of 2020, it is averred
O.P.(C)No.446 of 2021 & :-50-:
C.R.P.No.81 of 2021
that, St.Ignatius Orthodox Syrian Church is the Educational Agency
of the said school. The General Body of the Church has been
convened, following the procedure prescribed in the 1934
Constitution, and the office bearers of the school have been
elected. The 3rd decree holder in E.P.No.565 of 2020 has been
elected as the Manager of the school, by the Committee. The term
of the present Manager, i.e., the 5 th judgment debtor, who is
continuing as Manager of the school, on temporary basis, has
already expired on 18.05.2020. He is attempting to effect
appointment to the vacancies, for which he has no right or
authority. The proposal for change of management has already
been submitted before the District Educational Officer, Ernakulam,
which is pending consideration. The 5 th judgment debtor has filed a
writ petition challenging the letter issued by the District Educational
Officer, for production of certain documents.
9.3. On 01.10.2020, the execution court granted an ad
interim injunction in E.A.No.709 of 2020 as prayed for, till the
disposal of that application. On 09.10.2020, the 5 th judgment
debtor in E.P.No.565 of 2020 filed counter affidavit in E.A.No.709 of
2020 by contending that the decree holders have obtained the ad
interim injunction by misleading the court. In view of the provisions
O.P.(C)No.446 of 2021 & :-51-:
C.R.P.No.81 of 2021
under Sections 11 and 33 of the Kerala Education Act, 1956 and
Chapter III of the Kerala Education Rules, 1959, civil courts have no
jurisdiction to pass any temporary injunction or to make an interim
order against the Manager of an educational institution, under the
provisions of the Code of Civil Procedure. He is the present Manager
of the school. In view of the law laid down in the judgments of this
Court, including the judgment of the Full Bench, interpreting the
above statutory provisions, no temporary injunction can be granted
by a civil court, restraining the Manager of an aided school from
making appointment of teachers. In the counter affidavit, the 5th
judgment debtor reserved his right to file a detailed counter
affidavit, controverting various allegations raised in the affidavit
filed in support of E.A.No.709 of 2020, and also on the
maintainability of E.P.No.565 of 2020. After considering the rival
contentions, the execution court, by the order dated 23.10.2020 in
E.A.No.709 of 2020 in E.P.No.565 of 2020, vacated the ad interim
injunction granted on 01.10.2020. Paragraphs 6 to 8 and also the
last paragraph of that order read thus;
"6. Point No.1: Under Section 33 of the Kerala Education Act,
civil courts have no jurisdiction to grant injunction either
temporary or interim under the provisions of the CPC. In
A.M.S. Mannadiar v. State [ILR 1995 (2) Ker 541], the
Full Bench of the Hon'ble High Court has held that in view of
O.P.(C)No.446 of 2021 & :-52-:
C.R.P.No.81 of 2021
Section 33, civil court has no jurisdiction to grant any
temporary injunction or make any interim order restraining
any proceeding which is being or about to be taken under the
Kerala Education Act. It is followed by the Hon'ble High Court
in Damodaran v. Vasudevan [1990 (2) KLJ 583],
Kamalakshị Amma v. Kathiyani Amma [1999 (2) KLT
552] and Shalini K v. Ramanand R. [2019 (1) KLJ 936].
The Kerala Education Act itself provides remedy for any
aggrieved party. In view of the statutory prohibition it is
found that this court is having no jurisdiction to grant any
temporary or prohibitory order as prayed against the
respondents.
7. Point No.2: It is in evidence that there were numerous
proceedings for the same Church. According to the
petitioners, the Manager was removed and there is a decree.
No such judgment or decree is produced before the court. As
per the judgment and decree of the Hon'ble High Court in
RFA, the Hon'ble High Court has only declared that
St.Ignatius Orthodox (Jacobite) Syrian Church has to be
administered in all matters of religious worship and
administration of assets as per the 1934 Constitution. Some
of the rival faction has filed O.S.No.17 of 2016 for removing
the Manager, the 6th defendant in the suit. The second prayer
among others is for the same. So, admittedly, even now the
Manager elected is in administration of the school. Though
the petitioners have a case that they have conducted an
election as per the 1934 constitution on 08.03.2020 and
members was elected, no documents are produced to prove
this fact. On the other hand, the Vicar in the earlier
mentioned suit filed an affidavit on 16.03.2020 stating that
the entire records were irrecoverably lost. So also the
O.P.(C)No.446 of 2021 & :-53-:
C.R.P.No.81 of 2021
present petitioners filed I.A.Nos.14 of 2020 and 15 of 2020
for getting themselves impleaded in the suit. These were also
withdrawn by them.
8. In K.S. Varghese Case, the Hon'ble Supreme Court has
held that the school has to be governed as per the Kerala
Education Act and relevant provisions (paragraph 176). The
respondents have produced the copy of the judgment of the
Hon'ble High Court in RP No. 694 of 2020 in W.P.(c)
No.15943 of 2020 dated 01.10.2020. From the judgment it
appears that the Hon'ble High Court has found that the
present 5th JD is the approved Manager. The Hon'ble High
Court further reviewed and recalled the order obtained from
it by suppressing material facts. It is revealed that three
matters are pending before the Hon'ble High Court. It is very
clear that it is suppressing all these facts, and by distorting
the facts, the petitioners have obtained an interim order. The
learned counsel appearing for the petitioners placed several
decisions in support of his contentions found that they are
not relevant for considering the present E.A. Hence not
considered.
In the result, the interim order dated 01.10.2020 is vacated
forthwith. Communicate order to the concerned parties."
(underline supplied)
9.4. Along with E.A.No.709 of 2020, the decree holders in
E.P.No.565 of 2020 filed E.A.No.710 of 2020, under Section 151 of
the Code of Civil Procedure, seeking an order directing the
judgment debtors/successors to handover to the decree holders the
following articles and records, in terms of the decree;
O.P.(C)No.446 of 2021 & :-54-:
C.R.P.No.81 of 2021
i. Key of the Church;
ii. Key of the office room (parsonage);
iii. Key of the Parish Hall;
iv. Key of the offertory boxes installed in five places;
v. Title documents of landed properties of the Church;
vi. Registers such as Marriage Register, Baptism Register,
funeral register, etc.;
vii. Articles such as gold plated cross, silver plated cross,
wooden cross and other items being used in the
Church;
viii. The ambulance vehicle No.KL-39/G-9734 belonging to
the Church;
ix. Key/all keys of St.Ignatius Vocational and Higher
Secondary School building.
9.5. On 28.10.2020, the 5th judgment debtor in E.P.No.565 of
2020 filed counter affidavit in E.A.No.710 of 2020, pointing out
that, as clear from the averments in the affidavit filed in support of
the execution application and also the reliefs sought for, judgment
debtors 1 to 5 are now managing the Church and the school. The
decree in R.F.A. No.427 of 2003 is only a declaratory decree and no
execution petition will lie for executing a declaratory decree. There
is no decree of mandatory injunction directing handing over of the
articles mentioned in the execution application. O.S.No.17 of 2016
filed seeking the relief of mandatory injunction for removal of the
judgment debtors in E.P.No.565 of 2020 and also for handing over
O.P.(C)No.446 of 2021 & :-55-:
C.R.P.No.81 of 2021
the administration of the Church and the school and also articles, is
now pending consideration before the First Additional District Court,
Ernakulam. In O.S.No.17 of 2016 (Ext.B1), the judgment debtors in
E.P.No.565 of 2020 have filed written statement with counter claim
(Ext.B2) for conducting proper election, with participation of all
eligible Parishioners, as per the 1934 Constitution, under the
supervision of court. In the counter affidavit it is contended that,
they are entitled to keep the articles referred to in E.A.No.710 of
2020, till their successors are properly elected, in accordance with
the 1934 Constitution.
9.6. On 14.10.2020, the decree holders in E.P.No.565 of
2020 filed E.A.No.780 of 2020 under Section 51(e) read with Order
XXI Rule 32 of the Code of Civil Procedure, seeking an order
directing the 6th respondent District Educational Officer, Ernakulam
to approve change of management of St.Ignatius Vocational Higher
Secondary School, Kanjiramattom, based on the application already
made and a prohibitory injunction prohibiting the 5th judgment
debtor or his successors from functioning as the Manager of the
school, in execution of the decree. In the affidavit filed in support of
E.A.No.780 of 2020, the decree holders have reiterated the
contentions raised in the affidavit filed in support of E.A.No.709 of
O.P.(C)No.446 of 2021 & :-56-:
C.R.P.No.81 of 2021
2020. In paragraph 6 of that affidavit, it is averred that, pursuant
to the Edavaka Yogam/General Body held on 08.03.2020, the
Committee elected to administer the affairs of the school convened
a meeting on 10.03.2020, in which the 3 rd decree holder was
elected as the Manager. Thereafter, application for change of
management was submitted before the District Educational Officer,
which is pending consideration. The 5 th judgment debtor was
elected as the Manager of the school, as the nominee of the
Patriarch faction, when the dispute was pending decision in R.F.A.
No.427 of 2003, based on an interim order permitting both faction
to conduct religious ceremonies. In the affidavit it is contended
that, even though writ petitions are pending, the relief sought for
by the 5th judgment debtor has become infructuous and it will not
affect the right of the decree holders for consideration of their
application for change of management by the District Educational
Officer. The conduct of the District Educational Officer in not
approving change of management, based on the applications
already made, is highly illegal and violative of the judgment of the
Apex Court in K.S. Varghese [(2017) 15 SCC 333], St.Mary's
Orthodox Church and others v. State Police Chief and others
[2019 (3) KLT 419 SC] and also the undertaking given before
O.P.(C)No.446 of 2021 & :-57-:
C.R.P.No.81 of 2021
this Court in R.F.A.No.427 of 2003.
9.7. On 28.10.2020, the 5th judgment debtor filed counter
affidavit in E.A.No.780 of 2020, reiterating the contentions raised in
the counter affidavit filed in E.A.No.709 of 2020, pointing out that,
with substantially same averments the decree holders filed
E.A.No.709 of 2020, which has already been dismissed by the order
dated 23.10.2020. Therefore, E.A.No.780 of 2020 is also liable to
be dismissed on the very same reasoning.
9.8. On 14.12.2020, the District Educational Officer,
Ernakulam, the 6th respondent in E.A.No.780 of 2020, filed
statement stating that the 5th judgment debtor was elected as the
Manager of St.Igantius Vocational Higher Secondary School,
Kanjiramattom, with effect from 21.05.2010 and that appointment
was approved vide order dated 18.09.2010. The term of
appointment, as per the approved constitution of the Educational
Agency, is 5 years. The Managing Committee again elected the 5 th
judgment debtor as the Manager of the school, for another 5 years
from 19.05.2015. That appointment was also approved by the
District Educational Officer. Accordingly, the term of his
appointment expired on 18.05.2020. On 18.05.2020, the 5 th
judgment debtor submitted a request seeking permission for
O.P.(C)No.446 of 2021 & :-58-:
C.R.P.No.81 of 2021
extension of his term of appointment till a new Managing
Committee and Manager are elected. Such a request was made on
the ground that, due to COVID-19 pandemic, the General Body
meeting of St.Ignatius Orthodox Syrian Church could not be
conducted to elect a new Managing Committee of the Educational
Agency. As per the approved constitution of the Educational Agency,
the existing Manager can continue in office till a new Manager is
appointed. On 25.05.2020, the 3rd decree holder submitted a
request, raising objection against the functioning of the 5 th
judgment debtor as the Manager of the school, after the term of his
appointment. Based on that objection, the District Educational
Officer called for a report from the 5 th judgment debtor as to
whether any General Body has been conducted to elect a new
Manager. On 24.07.2020, one Mathew Pulimoottil submitted a
request along with an application for change of management of the
school, claiming that the Managing Committee of the school elected
the 3rd decree holder as the Manager, in the meeting convened on
10.03.2020, and sought for approval of the same. The 3 rd decree
holder filed W.P.(C)No.15943 of 2020 before the High Court for
speedy disposal of that application. The High Court by the judgment
dated 05.08.2020 directed the District Educational Officer to
O.P.(C)No.446 of 2021 & :-59-:
C.R.P.No.81 of 2021
consider and dispose of that application, within 60 days from the
date of receipt of the judgment, after hearing the parties involved
in the matter. In compliance to that judgment, the District
Educational Officer sought records relating to the meeting of the
Managing Committee held on 10.03.2020, from the 3 rd decree
holder, who did not submit the original minutes. The 5 th judgment
debtor filed R.P.No.694 of 2020, in which the High Court recalled
the judgment dated 05.08.2020 in W.P.(C)No.15943 of 2020 and
posted the case along with W.P.(C)Nos.16547 of 2014, 2719 of
2016 and 17731 of 2020. Since W.P.(C)No.17731 of 2020 filed by
the 5th judgment debtor against the approval of the 3rd decree
holder as the Manager of the school is under consideration before
the High Court, the 6th respondent District Educational Officer is not
in a position to take a decision in the matter of approval of
appointment of the 3rd decree holder as the Manager of the school.
9.9. Along with E.A.No.780 of 2020, the decree holders in
E.P.No.565 of 2020 filed E.A.No.781 of 2020, under Order XL Rule 1
read with Section 151 of the Code of Civil Procedure, seeking an
order to appoint the District Educational Officer, Ernakulam as
Receiver, in order to function as the Manager of St.Ignatius
Vocational Higher Secondary School, Kanjiramattom, on temporary
O.P.(C)No.446 of 2021 & :-60-:
C.R.P.No.81 of 2021
basis, pending consideration of the application for change of
management made by the 3rd decree holder. In the affidavit filed in
support of E.A.No.780 of 2020, which contains averments
substantially similar to that contained in the affidavit filed in
support of E.A.No.781 of 2020, it is contended that, the objection
raised by the District Educational Officer to E.A.No.709 of 2020,
after referring to the provisions of the Kerala Education Act and the
Kerala Education Rules that the authorities under that Statute alone
can restrict the power of the Manager, no longer survive, since the
judgment in K.S. Varghese is the law declared by the Apex Court
under Article 141 of the Constitution of India, which the District
Educational Officer is bound to implement, as per the mandate of
Article 144. The provisions under the Kerala Education Act and that
under the Kerala Education Rules and also the powers extended to
the statutory authorities thereunder cannot and will not override
the above constitutional mandate.
9.10. On 28.10.2020, the 5th judgment debtor in E.P.No.565
of 2020 filed counter affidavit in E.A.No.781 of 2020, pointing out
the dismissal of E.A.No.709 of 2020, by the order dated
23.10.2020, and contending that E.A.No.781 of 2020 filed seeking
an order to appoint the District Educational Officer as the Receiver
O.P.(C)No.446 of 2021 & :-61-:
C.R.P.No.81 of 2021
of the school is not maintainable in law, which is even in conflict
with the provisions contained in the Kerala Education Act and the
Rules made thereunder. Though the 1st decree holder is the Vicar of
the Church, the 2nd decree holder is not the elected trustee of the
Church and the 3rd decree holder is not the elected Manager of the
school. No General Body meeting of the Church was conducted on
08.03.2020 and the office bearers of the management of the
Church and that of the school were not elected. O.S.No.17 of 2016,
in respect of the very same Church, seeking various reliefs,
including removal of the judgment debtors from the management of
the Church and the school, is pending consideration. In the said suit
(Ext.B1), the judgment debtors have filed written statement
(Ext.B2) dated 22.02.2019 practically conceding the plaint claim,
but raising a counter claim to conduct fair, proper and democratic
election in accordance with the 1934 Constitution, under the
supervision of court. Thereupon, the decree holders along with the
former Vicar of the Church, who is arrayed as the 2 nd defendant in
O.S.No.17 of 2016, created false, fabricated and forged documents
regarding a parish assembly meeting alleged to have been held on
08.03.2020. In paragraph 8 of the counter affidavit, it is stated
that, the decree passed by this Court in R.F.A.No.427 of 2003 is to
O.P.(C)No.446 of 2021 & :-62-:
C.R.P.No.81 of 2021
the effect that St.Ignatius Orthodox Church, Kanjiramattom, is to
be administered in all matters as per the 1934 Constitution. All the
parishioners including the judgment debtors are accepting this
verdict and also that in K.S. Varghese and accordingly, they have
stopped parallel services, which were being conducted on the basis
of the interim orders passed in R.F.A.No.427 of 2003. On
04.03.2020, the judgment debtors have voluntarily filed affidavit
(Ext.A11) dated 04.11.2020 in O.S.No.17 of 2016 and stopped
parallel services on the basis of the aforesaid judgments. Keys and
records can be handed over to the new office bearers, properly
elected with the participation of all eligible parishioners, for which
the judgment debtors have raised a counter claim in O.S.No.17 of
2016. The judgment debtors, who are the elected office bearers,
were not removed from the post, as prayed for in O.S.No.17 of
2016. There was no General Body meeting on 08.03.2020 and the
minutes produced before the District Educational Officer and also
before the execution court is a bogus, false and fabricated
document. The 5th judgment debtor was elected as the Manager of
the school, not by the Patriarch faction, but by the parish assembly.
The 3rd decree holder filed W.P.(C)No.15943 of 2020 before the High
Court suppressing true facts and without impleading the 5 th
O.P.(C)No.446 of 2021 & :-63-:
C.R.P.No.81 of 2021
judgment debtor and obtained orders behind his back, for
consideration of the application made before the District
Educational Officer for approval of change of management. On
getting information regarding the said judgment, he filed
R.P.No.694 of 2020 seeking review of that judgment, stating true
and correct facts. Accordingly, by the order in that review petition,
the judgment passed in W.P.(C)No.15943 of 2020 stand recalled
and that writ petition along with connected matters are listed for
hearing. In the counter affidavit, the 5 th judgment debtor has also
raised various contentions as to the maintainability of E.A.No.781 of
2020 and even the maintainability of E.P.No.565 of 2020.
9.11. On 14.12.2020, the District Educational Officer,
Ernakulam, the 6th respondent in E.A.No.781 of 2020, filed
statement raising contentions similar to that raised in the
statement filed in E.A.No.780 of 2020.
9.12. Before the execution court, E.P.No.565 of 2020 was
heard on 14.12.2020. The execution court noticed that the first
point that has to be considered is as to whether there was a valid
election on 08.03.2020, as claimed by the decree holders. In the
objection filed by the District Educational Officer to E.A.No.780 of
2020, it is stated that the decree holders had approached him,
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C.R.P.No.81 of 2021
contending that office bearers were elected in the election held on
10.03.2020. However, no original documents were produced. In
such circumstances, the execution court by the order dated
14.12.2020 directed the decree holders to produce the original of
the following documents;
(i) Kalpana of Diocesan Metropolitan appointing the 1 st
decree holder as the Vicar of the Church;
(ii) Parish register;
(iii) Parish assembly register;
(iv) Voters list;
(v) Notice of the proposed election;
(vi) Minutes - decision of Edavaka Yogam approved by the
Diocesan Metropolitan;
(vii) Confession register.
9.13. Before the execution court, Exts.A1 to A14 were marked
on the side of the judgment debtors. On the side of the decree
holders, Exts.B1 to B17 were marked. Both sides have not chosen
to adduce any oral evidence. The document marked as Ext.A6 is a
copy of the minutes of Edavaka Yogam of St.Ignatius Orthodox
Church, Kanjiramattom, dated 08.03.2020. Ext.A7 is a copy of the
minutes of the Managing Committee of St.Ignatius Vocational
Higher Secondary School, Kanjiramattom, dated 10.03.2020. The
document marked as Ext.B13 is a copy of the plaint in O.S.No.327
of 2020 filed before the Munsiff's Court, Ernakulam. The document
O.P.(C)No.446 of 2021 & :-65-:
C.R.P.No.81 of 2021
marked as Ext.B16 is a copy of the FIR in Crime No.978 of 2020 of
Mulanthuruthy Police Station, alleging offence punishable under
Sections 120B, 403, 464, 465 and 34 of the Indian Penal Code,
1860, in relation to Exts.A6 and A7 minutes.
9.14. O.S.No.327 of 2020 is one filed on 19.05.2020, by one
Joshy C. Abraham and Jiso Rajan, seeking a decree of mandatory
injunction, directing the 2nd defendant Vicar of the 1st defendant
St.Ignatius Orthodox Church, Kanjiramattom or his successor to
prepare the voters' list of the Church by incorporating all eligible
and qualified Parishioners in accordance with the 1934 Constitution
and to conduct election to the Managing Committee of the Church
and to the Managing Committee of St.Ignatius Vocational Higher
Secondary School, Kanjiramattom, in accordance with the 1934
Constitution and the approved constitution of the school; and for
other consequential reliefs. The reliefs sought for in O.S.No.327 of
2020 read thus;
"A. pass a decree of mandatory injunction, directing the 2 nd
defendant or his successors to prepare the Edavaka Register of
the 1st defendant Church;
B. mandatory injunction, directing the 2 nd defendant or his
successor to prepare the voters' list of the 1 st defendant
Church by incorporating all eligible and qualified parishioners in
accordance with the 1934 Constitution and further direct to
conduct election to the Managing Committee of the 1 st
O.P.(C)No.446 of 2021 & :-66-:
C.R.P.No.81 of 2021
defendant church and the Managing Committee of St.Ignatius
Vocational Higher Secondary School, Kanjiramattom, in
accordance with the 1934 Constitution and the approved
constitution of the school;
C. grant a decree of permanent prohibitory injunction,
restraining the 2nd defendant or his successors from convening
the General Body meeting of the 1 st defendant Church for
conducting election to the managing committee of the 1 st
defendant Church and the Managing Committee of St.Ignatius
Vocational Higher Secondary School, Kanjiramattom, without
preparing the voters' list of all eligible and qualified
parishioners, in accordance with the 1934 Constitution and in
accordance with the judgment of the Honorable Supreme Court
of India in K.S. Varghese's case."
10. The execution court by the impugned order dated
06.02.2021 allowed E.P.No.565 of 2020 in O.S.No.163 of 1977 and
the judgment debtors are directed to handover items (i) to (xi)
mentioned in column 12(a) of the execution petition to the 1st
decree holder Vicar, within seven days from the date of order,
failing which the decree holders are permitted to get the same with
the assistance of the court and to realise the expenses, if any,
incurred. In view of the above findings in the execution petition, the
execution court found that no separate orders are required in
E.A.No.710 of 2020. Hence, E.A.No.710 of 2020 was also allowed.
The execution court allowed E.A.No.780 of 2020 and the 6 th
O.P.(C)No.446 of 2021 & :-67-:
C.R.P.No.81 of 2021
respondent District Educational Officer, Ernakulam is directed to
approve change of management of St.Ignatius Vocational Higher
Secondary School, Kanjiramattom, based on the application made
by the decree holders. The 5th judgment debtor is restrained from
functioning as the Manager of the school, forthwith. If the 5 th
judgment debtor is not doing so, the decree holders are permitted
to execute the decree with the assistance of the court. In view of
the order in E.A.No.780 of 2020, the prayer for appointment of
Receiver as sought for in E.A.No.781 of 2020 was not allowed. The
operative portion of the said order reads thus;
"1. In view of the foregoing discussions: E.P is allowed as
follows:
The JDs are directed to handover the following items
mentioned in 12(a) i to ix in the EP to the first decree holder
vicar within 7 days from the date of this order failing which the
decree holders are permitted to get the same with the
assistance of the court and to realise the expense if any
incurred.
i. key of the Church;
ii. key of the office room;
iii. key of the parish hall;
iv. key of the offertory boxes installed in five places;
v. documents of landed properties of the Church;
vi. registers such as marriage register, baptism
register, funeral register etc.;
O.P.(C)No.446 of 2021 & :-68-:
C.R.P.No.81 of 2021
vii. Articles such as gold plated cross, silver plated
cross, wooden cross and other items being used in
the Church;
viii. The ambulance vehicle No.KL-39/G-9734 belonged
to the Church;
ix. Key/all keys of the St.Ignatius Vocational and
Higher Secondary school building.
2. In view of the above findings, no separate orders are
required in E.A.No.710 of 2020. Hence, E.A.No.710 of 2020 is
also allowed.
3. E.A.No.780 of 2020 is allowed and the 6th respondent DEO
Ernakulam is directed to approve the change of management
application submitted by the decree holders. The 5th JD is
restrained from functioning as the manager of St.Ignatius
Vocational and Higher Secondary School, Kanjiramattom
forthwith. If the 5th JD is not doing so, the decree holders are
permitted to execute the decree with the assistance of the
court.
4. In view of the order in E.A.No.780 of 2020, the prayer for
appointing a receiver as prayed in E.A.No.781 of 2020 is not
allowed."
10.1. Before the execution court, the judgment debtors
contended that the declaratory decree in O.S.No.163 of 1977, in
terms of the judgment dated 10.02.2020 of this Court in
R.F.A.No.427 of 2003 is not executable, relying on the decision of
the Apex Court in State of M.P. v. Mangilal Sharma [(1998) 2
SCC 510]. In the order dated 06.02.2021, the execution court
repelled the said contention, holding that, since the suit was
O.P.(C)No.446 of 2021 & :-69-:
C.R.P.No.81 of 2021
decreed as per the declaration in K.S. Varghese, the Church in this
case is also to be administered as per the directions in Para.228 of
the said decision. Paragraph 16 of the said order of the execution
court reads thus;
"16. Points 1 to 5: For the sake of convenience the points are
discussed together. The suit was filed before the Munsiff's
Court, Ernakulam in the year 1976. It was thereafter
transferred to this court and renumbered. The suit was
dismissed on 13.10.2003. Aggrieved by the same the matter
was taken up in appeal before the Hon'ble High Court. The
Hon'ble High Court decreed the suit. Ext.A2 is the judgment
and Ext.A1, the decree. The suit was decreed as per the
declaration of the Hon'ble Supreme Court in K.S. Varghese's
case. It was declared that the St.Ignatius Orthodox (Jacobite)
Syrian Church, Kanjiramattom be administered in all matters of
religious worship and administration of assets as per the 1934
Constitution. The other reliefs sought for in the suit were not
allowed. The learned counsel appearing for the J.Ds relying on
the dictum laid down by the Hon'ble Supreme Court in State of
M.P. v. Mangilal Sharma [(1998) 2 SCC 510] argued that being
a simple declaratory decree it is not executable. The argument
cannot be upheld because the suit was decreed as per the
declaration in K.S. Varghese's case. In K.S.Varghese's case, the
Hon'ble Supreme Court in Paragraph 184 has given the
conclusions vide 28 clauses. The clauses will go to show how
the Church and its assets are to be administered as per the
1934 Constitution. So, based on the declaration, the Church in
this case is also bound to be administered as per the 28
directions in the conclusion part." (underline supplied)
O.P.(C)No.446 of 2021 & :-70-:
C.R.P.No.81 of 2021
10.2. Before the execution court, the judgment debtors
pointed out the pendency of O.S.No.17 of 2016, seeking reliefs with
respect to the administration of the Church and its assets. It was
contended that the pendency of O.S.No.17 of 2016 is a bar for the
decree holders in prosecuting the execution petition. Repelling the
said contention, the execution court held that O.S.No.17 of 2016 is
a subsequent suit, which ought to have been stayed under Section
10 of the Code of Civil Procedure. Being a subsequent suit, even if
the decree holders have got themselves impleaded in that suit, it is
not a bar for them to prosecute the execution petition. Paragraphs
17 to 19 of the order of the execution court dated 06.02.2021 read
thus;
"17. The learned counsel appearing for the JDs pointed out the
pendency of O.S.No.17 of 2016 with respect to the same
Church before this court. In the suit also, similar reliefs are
sought for with respect to the administration of the assets and
the Church. It is also a suit under representative capacity. The
suit was filed on 06.07.2012, i.e., during the pendency of the
present suit, which is also a representative suit. So the
maintainability of that suit itself is doubtful. Moreover, while
hearing the appeal, RFA No.427 of 2003, the pendency of the
suit was brought to the notice of the Hon'ble High Court. It
was after considering the same, the present judgment and
decree was passed. The Hon'ble High Court advised the
parties to work out the remedies in that case.
O.P.(C)No.446 of 2021 & :-71-:
C.R.P.No.81 of 2021
18. Ext.B1 is the copy of the plaint in O.S.No.17 of 2016.
Ext.B2 is the written statement with counter claim filed by the
defendants 6, 7 and 8 in it. Ext.B3 will go to show that the
present second decree holder has filed an impleading petition
I.A.No.3691 of 2019. It is admitted that it was later
withdrawn. Ext.R4 is another impleading petition filed by the
third decree holder who was the additional 12 th defendant
there. He was impleaded in the proceedings. He also filed
written statement with counter claim but later has withdrawn
from the suit. Ext.B5 is the copy of the written statement of
the decree holder in the suit. Ext.B6 is the interlocutory
application filed for withdrawing him from the suit.
19. The second decree holder also filed I.A.No.14 of 2020 to
implead him as additional 13th defendant. It was also allowed
and later he also withdrew from the same. The learned counsel
appearing for the JDs would say that because of the
impleadment and subsequent withdrawal from that case, the
decree holders 2 and 3 are prevented from contesting this
execution petition in view of Order IX Rule 9 CPC. I have
already mentioned that O.S.No.17 of 2016 is a subsequent suit
to this suit. It ought to have been stayed under Section 10
CPC. Being a subsequent suit even if the decree holders have
got themselves impleaded in the other suit, I am of the view
that it is not a bar for them to contest the execution petition."
10.3. In O.S.No.17 of 2016, the defendants filed I.A.No.17 of
2020 (Ext.B9) seeking an order of injunction, restraining the
plaintiffs, their men and agents and anybody claiming under them
from claiming any right for the administration of St.Ignatius
O.P.(C)No.446 of 2021 & :-72-:
C.R.P.No.81 of 2021
Orthodox (Jacobite) Syrian Church and St.Ignatius Vocational
Higher Secondary School, Kanjiramattom. In the affidavit filed in
support of Ext.B9 interlocutory application, it is alleged that the
claim of the 2nd defendant Vicar that the parish assembly was
convened on 08.03.2020 is on the basis of false, forged and
fabricated records. The said fact was not disclosed in the affidavit
filed by the 2nd defendant on 16.03.2020.
10.4. In the order dated 06.02.2021, the execution court
noticed that, in O.S.No.17 of 2016 the 2 nd judgment debtor in
E.P.No.565 of 2020, who is the 7th defendant in O.S.No.17 of 2016,
filed an affidavit (Ext.A11) stating that they are not continuing
parallel service in the Church. Paragraph 20 of the order of the
execution court dated 06.02.2021 reads thus;
"20. In the second suit, the second JD/7 th defendant filed an
affidavit stating that they are not continuing parallel service in
the Church. Ext.B9 is an injunction application, I.A.No.17 of
2020. The interlocutory application is still pending. In the
interlocutory application, it was undertaken that the
defendants will not do anything as per the alleged election held
in the Church on 08.03.2020." (underline supplied)
10.5 By the order of this Court dated 04.06.2021, both sides
were asked to clarify on the undertaking referred to in Para.20 of
the impugned order dated 06.02.2021. Thereafter, during the
O.P.(C)No.446 of 2021 & :-73-:
C.R.P.No.81 of 2021
course of further arguments, it was pointed out by the learned
Senior Counsel on both sides that none of the defendants in
O.S.No.17 of 2016 gave any undertaking before the court below
that they will not do anything as per the alleged election held in the
Church on 08.03.2020.
10.6. Before the execution court, it was contended that
E.P.No.565 of 2020 filed by the present Vicar and 2 others is not
maintainable since plaintiffs 2 to 4 in O.S.No.163 of 1977, who are
alive, have not chosen to file the execution petition. Repelling the
said contention, the execution court held that O.S.No.163 of 1977
being a representative suit, any parishioner, who is entrusted with
the management and administration of the assets of the Church,
can maintain the execution petition. Paragraph 21 of the order of
the execution court dated 06.02.2021 reads thus;
"21. It is an admitted fact that the plaintiffs 2 to 4 in this suit
are alive and not parties to the execution petition. The
execution petition is filed by the present Vicar, trustee and
manager of the Church. Being a representative suit, any
parishioner who is entrusted with the management and
administration of the assets of the Church can maintain the
execution petition. Ext.A3 is the Kalpana dated 28.08.2020 of
the Metropolitan appointing the first decree holder as the Vicar
of the Church. Exts.A4 and A5 are the proceedings of the
Metropolitan with respect to this Church. The entire assets
belongs to the Church. As per the 1934 Constitution it is the
O.P.(C)No.446 of 2021 & :-74-:
C.R.P.No.81 of 2021
vicar who has to manage the assets of the Church. So,
definitely the first decree holder is entitled to represent the
Church even though the Church is not party to the execution
petition." (underline supplied)
10.7. Before the execution court, it was contended that the
judgment debtors are still parishioners of the Church and are
entitled to participate in the religious services and administration of
the assets of the Church. The judgment debtors have produced the
relevant registers in support of their claim. The execution court
observed that, after the split in the year 2002, only members
belonging to Orthodox faction are the parishioners in the Church.
There is not even a scrap of paper to show that the judgment
debtors or any of the members, who went away from the Church in
the year 2002, following the Patriarch, have ever accepted 1934
Constitution or have applied for membership in the Church.
Therefore, the execution court held that, neither the judgment
debtors nor those, who did not accept the 1934 Constitution, can
participate in the religious services and administration of the
Church. Paragraph 22 of the order of the execution court dated
06.02.2021 reads thus;
"22. The learned counsel appearing for the JDs would say that
they are still parishioners of the Church and are entitled to
participate in the religious service and administration of assets
O.P.(C)No.446 of 2021 & :-75-:
C.R.P.No.81 of 2021
of the Church. The JDs have also produced 12 registers in
support of their claim. The registers are of the period from
1949 onwards. It will go to show that the decree holders as
well as the JDs and their predecessors were members of the
Church. But it appears that after the split in 2002, only the
members belongs to Orthodox faction are parishioners of this
Church. The documents produced by the decree holders as
directed by this court on 14.02.2020 will go to show that the
present JDs have no membership in the Church nor they have
applied for membership accepting the 1934 constitution.
Membership in a Church is not a legal right. So it cannot be
enforced through court. A person can get membership in a
Church only as per the consent of the majority of the
parishioners of the Church and as per 1934 Constitution. In
this case there is not even a scrap of paper to show that the
JDs or any of the members who went away from the Church in
2002 following the Patriarch have ever accepted 1934
Constitution or have applied for membership in the Church. In
such circumstances, neither the JDs nor those who does not
accept 1934 Constitution can participate in the religious
service and administration of the Church." (underline supplied)
10.8. Before the execution court, relying on Ext.B11 letter
dated 24.04.2020 addressed to the Vicar of the Church and Ext.B12
letter dated 28.04.2020 addressed to the Metropolitan, it was
pointed out that the parishioners of the Church have requested the
Vicar and the Metropolitan to conduct election. The judgment
debtors have also pointed out the pendency of O.S.No.327 of 2020
(Ext.B13) filed before the Munsiff's Court, Ernakulam, for
O.P.(C)No.446 of 2021 & :-76-:
C.R.P.No.81 of 2021
conducting election. Per contra, the decree holders contended that,
after the judgment in K.S. Varghese, they have conducted an
election as per the 1934 Constitution, on 08.03.2020. In support of
the said contention, they relied on Exts.A6 and A7 minutes. They
have relied on Ext.A8 photographs, Ext.A9 document and Exts.A12
to A14 photographs to contend that the judgment debtors are still
members of Jacobite faction. The execution court, in the impugned
order, concluded that, as the judgment debtors are having no
membership in the Church, they are not entitled to make a demand
to conduct election. Exts.A6 and A7 minutes will go to show that
there was an election by which the office bearers, trustees and
managers were elected. The documents will go to show that the 2nd
decree holder is the elected trustee and the 3rd decree holder is the
Manager. The documents (photographs) will also go to show that
the judgment debtors are not still accepting the 1934 Constitution,
but they want to participate with the activities of the Church, which
they are not legally entitled. Therefore, the execution court found
that the decree holders are entitled for the reliefs sought for in the
execution petition. Paragraphs 23 to 25 of the order of the
execution court dated 06.02.2021 read thus;
"23. The learned counsel appearing for the JDs rely on
Exts.B11 and B12 to show that on 24.04.2020 and
O.P.(C)No.446 of 2021 & :-77-:
C.R.P.No.81 of 2021
28.04.2020, the parishioners of the Church approached the
vicar as well as the Metropolitan to conduct election to the
Church. As earlier stated, as they are having no membership in
the Church they are not entitled to make such a demand. It is
submitted by the learned counsel that Ext.B13 is a suit filed by
the JDs to conduct an election. The suit O.S.No.327 of 2020 is
pending before the Munsiff's Court, Ernakulam. The suit has its
own legal ends and has nothing to do with this case.
24. The decree holders would say that after the judgment in
K.S.Varghese case they have conducted an election as per the
1934 Constitution on 8.03.2020. It is in support of this, they
have produced Exts.A6 and A7 minutes and rely on the
registers produced by them. It will go to show that there was
an election by which officer bearers, trustees and managers
were elected. It is true that there are only a few members
following 1934 Constitution who participated in the election. It
will not tell upon the election conducted on 08.03.2020 in view
of clause 20 in paragraph 184 in K.S. Varghese case. The
documents will go to show that the second decree holder is the
elected trustee and the third decree holder the Manager. The
learned counsel appearing for the JDs would say that the
documents relied on by the decree holders are forged. It is in
support of this he is relying on Exts.B15 and B16 First
Information Reports. Ext.B15 relates to the election conducted
in 2015 and Ext.B16 with respect to the present election. It is
up to the police to investigate the case and proceed with the
complaint if there is any truth in the allegation.
25. The learned counsel appearing for the decree holders rely
on Exts.A8, A9, A12 to 14 to show that the JDs are still
members of jacobite faction. It is submitted that they are
having worship in the Church named St.Ignatius Orthodox
O.P.(C)No.446 of 2021 & :-78-:
C.R.P.No.81 of 2021
Syrian Church, Kanjiramattom. Along with the argument note
the decree holders have also produced photographs which will
show the JDs with their Metropolitan at their Church, and also
having worship as per their faith. This will also go to show that
the JDs are not still accepting the 1934 Constitution but they
want to participate with the activities of the Church, which they
are not legally entitled. In the light of the aforesaid
discussions, it is found that the decree holders are entitled for
the reliefs sought for in the execution petition. Only if there is
disobedience to the direction issued by the court, coercive
steps can be taken to execute the decree. The judgment
debtors are directed to return the articles mentioned in 12(a) i
to ix to the first decree holder vicar within 7 days from the
date of this order falling which the decree holders are
permitted to get the same with the assistance of the court and
to realise the expense if any incurred. In view of the above
findings, no separate orders are required in E.A.No.710 of
2020." (underline supplied)
10.9. Before the execution court, the judgment debtors
pointed out Ext.B10 order of this Court dated 01.10.2020 in
R.P.No.694 of 2020, whereby the judgment dated 05.08.2020 in
W.P.(C)No.15943 of 2020 was recalled. The execution court held
that the 5th judgment debtor can continue as the Manager only till a
new Manager is elected, as per the 1934 Constitution. It is done
and the 3rd decree holder is the present Manager, who is entitled to
manage the school as per the bye-law of the Educational Agency.
Therefore, the execution court directed the District Educational
O.P.(C)No.446 of 2021 & :-79-:
C.R.P.No.81 of 2021
Officer, Ernakulam, to approve the change of management, based
on the application made by the decree holders, and restrained the
5th judgment debtor from functioning as the Manager of the school.
Paragraph 26 of the order of the execution court dated 06.02.2021
reads thus;
"26. Para 176 in K.S. Varghese case will go to show that
educational institutions of the Church have to be run in
accordance with the provisions of Kerala Education Act. So, the
school has to be run as per the Act. Ext.B14 is the bye law of
the educational agency of the Church approved by the
department. It will go to show that the institution is managed
by a committee having 7 elected members under the
chairmanship of the vicar. As earlier stated, the third decree
holder is the duly elected manager. So he is entitled to manage
the Church under the chairmanship of the vicar and the
committee. It is seen that the term of the present manager, 5th
JD has expired on 15.05.2020. So he is not entitled to hold the
post. But the JDs rely on Ext.B10 order of the Hon'ble High
Court recalling the order in W.P.(C)No.15943 of 2020 in the
Review Petition No.694 of 2020 filed by the 5 th JD herein. The
5th JD can continue as the manager only till a new manager is
elected to the Church as per the 1934 constitution. As earlier
stated, it is done and the third decree holder is the present
manager. The JDs also rely on Ext.B17 a mass petition
submitted before the DEO alleging that no election or
pothuyogam was conducted in the Church and 5 th JD has to
continue as the manager. There is no grain of truth in the said
representation. It is found that the third decree holder is
entitled to manage the school as per the bye law of
O.P.(C)No.446 of 2021 & :-80-:
C.R.P.No.81 of 2021
educational agency of the Church. So allowing the prayer in
E.A.No.780 of 2020, the 6 th respondent DEO, Ernakulam is
directed to approve the change of management application
submitted by the decree holders. The 5 th JD is restrained from
functioning as the manager of St.Ignatius Vocational Higher
Secondary School, Kanjiramattom forthwith. If the 5 th JD is not
doing so, the decree holders are permitted to execute the
decree with the assistance of the court. In view of the order in
E.A.No.780 of 2020, the prayer for appointing a receiver as
prayed in E.A.No.781 of 2020 is not allowed."
(underline supplied)
11. In O.P.(C)No.446 of 2021, the challenge made under
Article 227 of the Constitution of India is against order dated
06.02.2021 of the execution court in E.A.No.780 of 2020 in
E.P.No.565 of 2020 in O.S.No.163 of 1977. The decree holders in
E.P.No.565 of 2020 filed the said application on 14.10.2020,
seeking an order directing the 6 th respondent District Educational
Officer, Ernakulam, to approve change of management of
St.Ignatius Vocational Higher Secondary School, Kanjiramattom,
based on the application of the Educational Agency dated
14.07.2020 and a prohibitory injunction prohibiting the 5 th
judgment debtor or his successors from functioning as the Manager
of the school, in execution of the decree. By the impugned order,
the execution court allowed E.A.No.780 of 2020 and the 6 th
O.P.(C)No.446 of 2021 & :-81-:
C.R.P.No.81 of 2021
respondent District Educational Officer, Ernakulam, was directed to
approve change of management of the school, based on the
application made by the decree holders. The 5 th judgment debtor
was restrained from functioning as the Manager of the school,
forthwith. In case the 5th judgment debtor is not doing so, the
decree holders are permitted to execute the decree with the
assistance of the court.
11.1. The learned Senior Counsel for the petitioner contended
that St.Ignatius Vocational Higher Secondary School, which is an
aided educational institution, is governed by the provisions under
the Kerala Education Act, 1959 and the Rules made thereunder. The
appointment of the petitioner/5th judgment debtor as the Manager
of that school and the approval granted by the Educational
Authorities for such appointment are the subject matter of
challenge in various writ petitions pending before this Court. The 3 rd
decree holder in E.P.No.565 of 2020 filed W.P.(C)No.15943 of 2020
before this Court seeking time-bound consideration of the proposal
dated 14.07.2020 for change of management of the school, by the
District Educational Officer, Ernakulam. By the judgment dated
05.08.2020, this Court disposed of W.P.(C)No.15943 of 2020
directing time-bound consideration of that proposal by the District
O.P.(C)No.446 of 2021 & :-82-:
C.R.P.No.81 of 2021
Educational Officer, after hearing the parties involved in the matter.
However, that judgment was recalled by the order dated
01.10.2020 in R.P.No.694 of 2020 filed by the 5th judgment debtor.
The decree holders filed E.A.No.780 of 2020 before the execution
court on 14.10.2020, immediately after the order of this Court in
R.P.No.694 of 2020.
11.2. Per contra, the learned Senior Counsel for respondents 1
to 3 contended that, in view of the law laid down by the Apex Court
in K.S. Varghese, the execution court is well within its powers in
directing the 6th respondent District Educational Officer to approve
change of management of the school, based on the proposal dated
14.07.2020 of the Educational Agency and issuing prohibitory
injunction against the 5th judgment debtor. The pendency of various
writ petitions before this Court, including W.P.(C)No.15943 of 2020
filed by the 3rd decree holder seeking time-bound consideration of
the proposal dated 14.07.2020, is not a bar for the decree holders
in approaching the execution court in E.P.No.565 of 2020 and
E.A.No.780 of 2020 seeking reliefs in the management of the
school. The learned Government Pleader submitted that the 6 th
respondent District Educational Officer could not take a decision on
the proposal dated 14.07.2020 of the Educational Agency seeking
O.P.(C)No.446 of 2021 & :-83-:
C.R.P.No.81 of 2021
approval for change of management of the school, since by the
time the 6th respondent issued notice pursuant to the direction
contained in the judgment dated 05.08.2020 in W.P.(C)No.15943 of
2020, that judgment was recalled by this Court, by the order dated
01.10.2020 in R.P.No.694 of 2020.
11.3. Since the learned Senior Counsel on both sides and also
the learned Government Pleader for the official respondent
advanced arguments referring to the facts involved in W.P.(C)
Nos.2719 of 2016, 15943 of 2020 and 17731 of 2020, I have
perused the Judge's papers in those writ petitions. As discernible
from the Judge's papers, the appointment of the 5th judgment
debtor as the Manager of St.Ignatius Vocational Higher Secondary
School, Kanjiramattom, with effect from 11.04.2010, was approved
by the District Educational Officer, Ernakulam, vide order dated
18.09.2010. A rival claimant challenged the said order by filing
appeal before the Director of Public Instruction, which ended in
dismissal. The appellate order was under challenge in a revision
petition filed before the Government, which also ended in dismissal
by the order dated 30.04.2012. The rival claimant challenged that
order before this Court by filing W.P.(C)No.15726 of 2012, which
ended in dismissal by the judgment dated 10.04.2013. That
O.P.(C)No.446 of 2021 & :-84-:
C.R.P.No.81 of 2021
judgment was under challenge in W.A.No.1011 of 2013, which was
disposed of by the judgment dated 17.03.2014, without interfering
with the judgment of the learned Single Judge in any manner.
However, the Division Bench observed that, if the Church cannot
find a Manager of its choice, in accordance with the approved
scheme, it would be open to the statutory authorities to consider
appropriate action, within the frame work of the Kerala Education
Act and the Rules made thereunder, to ensure that the institution is
properly managed through the statutory machinery.
11.4. After the judgment of the Division Bench in
W.A.No.1011 of 2013, the District Educational Officer issued a
notice dated 24.06.2014 directing the Church to elect a new
Manager, in accordance with the approved scheme, within 15 days,
failing which he would resort to appropriate means, within the
frame work of the Kerala Education Rules. The 5 th judgment debtor
challenged the said notice by filing W.P.(C)No.16457 of 2014, in
which this Court granted an interim order on 27.06.2014, staying
all further proceedings pursuant to that notice. The 5 th respondent,
as a matter of abundant caution, moved the Apex Court against the
judgment of the Division Bench in W.A.No.1011 of 2013. On
18.07.2014, while issuing notice in S.L.P.(C)No.16097 of 2014, the
O.P.(C)No.446 of 2021 & :-85-:
C.R.P.No.81 of 2021
Apex Court granted an interim stay of the impugned judgment and
order passed by the High Court, till 20.08.2015. The 5 th judgment
debtor was re-elected as the Manager of the school, on 17.05.2015,
for a further term of 5 years, which was approved by the District
Educational Officer, vide order dated 23.05.2015, with effect from
19.05.2015. On 27.08.2015, when S.L.P.(C)No.16097 of 2014 came
up for consideration, the Apex Court disposed of the matter as
having become infructuous, since nothing survived in that petition
for consideration and decision.
11.5. The rival claimant challenged the order of the District
Educational Officer dated 23.05.2015 approving the appointment of
the 5th judgment debtor as the Manager of the school for a period of
5 years from 19.05.2015, before the Director of Public Instruction.
The appellate authority, by the order dated 04.01.2016, cancelled
the appointment of the 5th judgment debtor, who challenged that
order before this Court in W.P.(C)No.2719 of 2016. On 22.01.2016,
this Court admitted that writ petition and granted interim stay of
the said order dated 04.01.2016 (Ext.P16) for a period of one
month. That interim order, which was extended from time to time,
was extended until further orders on 11.07.2016. W.P.(C)No.2719
of 2016 is still pending consideration. The reliefs sought for in that
O.P.(C)No.446 of 2021 & :-86-:
C.R.P.No.81 of 2021
writ petition read thus;
"(i) to issue a writ in the nature of certiorari or such other writ,
direction or order calling for the records leading to Ext.P16 and
to quash the same;
(ii) to issue a writ in the nature of mandamus or such other
writ, direction or order commanding the respondents 1 and 2
not to interfere with the appointment and approval of the
petitioner as the Manager of the Saint Ignatius Vocational
Higher Secondary School as per Ext.P11 order;
(iii) to issue a writ of mandamus or such other writ, direction
or order declaring that the petitioner was duly elected as the
manager of the School and therefore entitled to continue in
office for a term of 5 years from May, 2015."
11.6. On 04.08.2020, the 3rd decree holder in E.P.No.565 of
2020, who is arrayed as the 5th respondent in W.P.(C)No.2719 of
2016, filed W.P.(C)No.15943 of 2020 before this Court, seeking a
writ of mandamus commanding the District Educational Officer,
Ernakulam, to consider and dispose of the proposal dated
14.07.2020 for change of management of the school [Ext.P4 in W.P.
(C)], within a time frame to be fixed by this Court. The document
placed on record as Ext.P3 is a copy of the minutes of the Managing
Committee of the school convened on 10.03.2020, in which the 3rd
decree holder was elected as the Manager of the school. As per
Ext.P3, election to the Managing Committee of the school was
conducted in the General Body of the Edavaka held on 08.03.2020.
O.P.(C)No.446 of 2021 & :-87-:
C.R.P.No.81 of 2021
By the judgment dated 05.08.2020 [Ext.P2 in O.P.(C)], this Court
disposed of that writ petition, directing the District Educational
Officer to consider and dispose of that application, within 60 days
from the date of receipt of the judgment, after hearing the parties
involved in the matter.
11.7. In compliance of the judgment in W.P.(C)No.15943 of
2020, the District Educational Officer sought for records from the
3rd decree holder, relating to the meeting of the Managing
Committee held on 10.03.2020, who did not submit the original
minutes. In the meanwhile, the 5th judgment debtor filed
R.P.No.694 of 2020 seeking review of the judgment in W.P.
(C)No.15943 of 2020. By the order dated 01.10.2020 in R.P.No.694
of 2020 [Ext.P5 in O.P.(C)] this Court recalled the judgment in W.P.
(C)No.15943 of 2020 and posted that writ petition along with W.P.
(C)No.16547 of 2014, 2719 of 2016 and 17731 of 2020.
11.8. On 24.08.2020, the 5th judgment debtor filed W.P.
(C)No.17731 of 2020, seeking a writ of certiorari to quash a letter
dated 12.08.2020 of the District Educational Officer, Ernakulam
[Ext.P16 in that W.P.(C)], whereby the 3rd decree holder is required
to produce certain documents, which are enumerated therein. The
said communication is one issued in connection with the proposal
O.P.(C)No.446 of 2021 & :-88-:
C.R.P.No.81 of 2021
dated 14.07.2020 for change of management [Ext.P4 in W.P.
(C)No.15943 of 2020]. The reliefs sought for in W.P.(C)No.17731 of
2020 read thus;
"(i) to issue a writ in the nature of certiorari or such other writ,
direction or order calling for the records leading to Ext.P16 and
to quash the same;
(ii) to issue a writ of mandamus or such other writ, direction
or order declaring that the general body meeting of the
parishioners of the 2nd respondent Church stated to have been
conducted on 08.03.2020 is illegal;
(iii) to issue a writ in the nature of mandamus or such other
writ, direction or order commanding the 2nd respondent to
consider the objections raised by the petitioner, the present
trustees of the 2nd respondent Church and the parishioners
against the proposal forwarded by the 4th respondent to
approve the appointment of the 3 rd respondent as the Manager
of the St.Ignatius Vocational Higher Secondary School,
Kanjiramattom on merits, after affording an opportunity of
being heard to them;
(iv) to issue a writ in the nature of mandamus or such other
writ, direction or order commanding the 1st respondent to
conduct an enquiry the authenticity of the records submitted
by the 4th respondent along with the proposal to approve the
appointment of the 3rd respondent as the Manager of
St.Ignatius Vocational Higher Secondary School,
Kanjiramattom."
11.9. On 25.08.2020, this Court admitted W.P.(C)No.17731 of
2020 and granted stay of operation of Ext.P16 and all further
O.P.(C)No.446 of 2021 & :-89-:
C.R.P.No.81 of 2021
proceedings pursuant to it for a period of one month and the writ
petition was ordered to be listed along with W.P.(C)No.2719 of
2016. The said interim order, which was extended till 05.10.2020,
was extended further for a period of three weeks on 23.11.2020.
11.10. In the order in R.P.No.694 of 2020 this Court found
that, taking note of the pendency of W.P.(C)Nos.16457 of 2014 and
2719 of 2016 between the same parties, in respect of substantially
similar matter, the 1st respondent (3rd decree holder) ought to have
specifically averred in W.P.(C)No.15943 of 2020, the pendency of
W.P.(C)Nos.16457 of 2014 and 2719 of 2016 and impleaded the
review petitioner (5th judgment debtor) as a party in that writ
petition. If the same were done, this Court would not have passed
the impugned judgment. In the order in R.P.No.694 of 2020 this
Court noticed the interim orders granted in favour of the 5 th
judgment debtor in W.P.(C)No.2719 of 2016 and W.P.(C)No.17731
of 2020.
11.11. The decree holders in E.P.No.565 of 2020 filed
E.A.No.780 of 2020 before the execution court on 14.10.2020, after
the order of this Court dated 01.10.2020 in R.P.No.694 of 2020,
whereby this Court recalled the judgment dated 05.08.2020 in W.P.
(C)No.15943 of 2020 filed by the 3 rd decree holder seeking time-
O.P.(C)No.446 of 2021 & :-90-:
C.R.P.No.81 of 2021
bound consideration of the proposal dated 14.07.2020 of the
Educational Agency for change of management of the school.
11.12. E.A.No.780 of 2020 filed by the decree holders in
E.P.No.565 of 2020, seeking an order directing the District
Educational Officer to approve change of management of the
school, based on the proposal of the Educational Agency dated
14.07.2020, and a prohibitory injunction prohibiting the 5 th
judgment debtor or his successors from functioning as the Manager
of the school, pending execution of the decree, is supported by an
affidavit dated 14.10.2020 sworn to by the 2nd decree holder on
behalf of the 1st and 3rd decree holders also. In Para.3 of that
affidavit it is stated as follows;
"The present Manager filed writ petition challenging the letter
issued by the DEO in the matter of production of certain
documents. Taking advantage of the above situation, the fifth
respondent is taking speedy steps to effect appointment
without any right or authority. The petitioners have filed
I.A.No.709 of 2020 in which this Hon'ble Court was pleased to
issue order injuncting the fifth respondent from making any
appointments in the Vocational Higher Secondary School."
(underline supplied)
In Para.7 of the affidavit filed in support of E.A.No.780 of 2020 it is
stated as follows;
"The conduct of the District Educational Officer in keeping the
O.P.(C)No.446 of 2021 & :-91-:
C.R.P.No.81 of 2021
application for change of management pending is not
justifiable. At present there is no adverse order issued by any
court or any prohibitory order is not in [sic: is in] force. Even
though writ petitions are pending, the reliefs sought for by the
fifth respondent is [sic: have become] infructuous and will not
affect the right of the petitioners to get consideration of the
change of management application by the District Educational
Officer." (underline supplied)
The writ petition filed by 'the present Manager', referred to in Para.3
of the affidavit filed in support of E.A.No.780 of 2020, is W.P.
(C)No.17731 of 2020 filed by the 5 th judgment debtor seeking a
writ of certiorari to quash a letter dated 12.08.2020 of the District
Educational Officer [Ext.P16 in that W.P.(C)], which is one issued in
connection with the proposal of the Educational Agency dated
14.07.2020 for change of management of the school, whereby the
3rd decree holder is required to produce certain documents. As
already noticed, on 25.08.2020, this Court granted interim stay of
operation of Ext.P16 and all further proceedings pursuant to it, for a
period of one month, and listed the matter along with W.P.
(C)No.2719 of 2016. The said interim order, which was extended till
05.10.2020, was extended further for a period of three weeks, on
23.11.2020.
11.13. In the affidavit filed in support of E.A.No.780 of 2020
dated 14.10.2020, the decree holders have suppressed the interim
O.P.(C)No.446 of 2021 & :-92-:
C.R.P.No.81 of 2021
order granted by this Court on 25.08.2020 in W.P.(C)No.17731 of
2020 and also the earlier interim order granted in W.P.(C)No.2719
of 2016. The pendency of W.P.(C)No.15943 of 2020 filed by the 3rd
decree holder seeking time-bound consideration of the proposal
dated 14.07.2020 for change of management of the school and also
the order of this Court dated 01.10.2020 in R.P.No.694 of 2020
recalling the judgment in W.P.(C)No.15943 of 2020 are also not
disclosed in the affidavit filed in support of E.A.No.780 of 2020. In
the affidavit filed on behalf of the decree holders, material facts
were suppressed from the notice of the execution court. In the said
affidavit, it is averred that, the reliefs sought for in the writ
petitions filed by the 5th respondent (5th judgment debtor) have
become infructuous, which will not affect the right of the petitioners
to get consideration of the application for change of management
by the District Educational Officer.
11.14. As already noticed, the decree holders in E.P.No.565 of
2020 earlier moved E.A.No.709 of 2020, seeking an order of
prohibitory injunction, prohibiting the 5th judgment debtor/his
successors from effecting any sort of appointment in the school,
pending execution of the decree. Though, on 01.10.2020, the
execution court granted ad interim injunction as prayed for in
O.P.(C)No.446 of 2021 & :-93-:
C.R.P.No.81 of 2021
E.A.No.709 of 2020, till the disposal of the application, that order
was vacated by a detailed order dated 23.10.2020. In Para.6 of the
said order, the execution court held that, under Section 33 of the
Kerala Education Act, civil courts have no jurisdiction to grant
injunction, either temporary or interim, under the provisions of the
Code of Civil Procedure.
11.15. In the order dated 23.10.2020 in E.A.No.709 of 2020,
the execution court noticed the judgment of the Full Bench of this
Court in A.M.S. Mannadiar v. State [ILR 1995 (2) Ker 541]
that, in view of Section 33 of the Kerala Education Act, civil court
has no jurisdiction to grant any temporary injunction or make any
interim order restraining any proceeding, which is being or about to
be taken under the said Act; which was followed in Damodaran v.
Vasudevan [1990 (2) KLJ 583], Kamalakshị Amma v.
Kathiyani Amma [1999 (2) KLT 552] and Shalini K v.
Ramanand R. [2019 (1) KLJ 936]. Therefore, the Kerala
Education Act itself provides remedy for an aggrieved party.
11.16. In the aforesaid order, the execution court concluded
that, in view of the statutory prohibition, the court is having no
jurisdiction to grant any temporary or prohibitory order, as prayed
for in E.A.No.709 of 2020, against the respondents. In that order
O.P.(C)No.446 of 2021 & :-94-:
C.R.P.No.81 of 2021
the execution court noticed the pendency of O.S.No.17 of 2016 filed
by the rival faction for removing the 5 th judgment debtor, the
elected Manager, who is in administration of the school; the law laid
down by the Apex Court in K.S. Varghese that the school has to
be governed as per the provisions under the Kerala Education Act
and rules made thereunder; and also the pendency of three writ
petitions before this Court. The execution court found that the
decree holders have obtained ad interim injunction suppressing all
these facts, and by distorting the facts.
11.17. In K.S. Varghese, the specific argument of the
learned counsel for the respondents in C.A.Nos.3674, 3681 and
3683 of 2015 [[email protected]] was that, educational institutions are
governed by the bye-laws, which are statutorily made and approved
under the provisions of the Kerala Education Act, 1959 and the
Rules. Thus Udampady of 1913 does not govern educational
institutions. The assets of the parish Churches are to be governed
by the 1934 Constitution and that of educational institutions as per
the 1959 Act and not by Udampady of 1913. In Para.216 of the
judgment, the Apex Court held that, the learned counsel for the
respondents in CA Nos.3674, 3681 & 3683 of 2015 was right in
submitting that educational institutions have to be run in
O.P.(C)No.446 of 2021 & :-95-:
C.R.P.No.81 of 2021
accordance with the provisions of the Kerala Education Act, 1959.
Educational institutions cannot be governed by the Udampady of
1913, as per Sections 6 and 7 of the Kerala Education Act.
11.18. Before the execution court the 5 th judgment debtor
filed counter affidavit in E.A.No.780 of 2020, pointing out that, with
substantially same averments, the decree holders filed E.A.No.709
of 2020, which has already been dismissed by the order dated
23.10.2020. Therefore, E.A.No.780 of 2020 is also liable to be
dismissed for the very same reason. In the counter affidavit filed by
the 6th respondent District Educational Officer, it is stated that, in
compliance of the directions contained in the judgment of this Court
dated 05.08.2020 in W.P.(C)No.15943 of 2020, records relating to
the meeting of the Managing Committee held on 10.03.2020 were
called for. However, by the order dated 01.10.2020 in R.P.No.694 of
2020 filed by the 5 th judgment debtor, this Court recalled the said
judgment in W.P.(C)No.15943 of 2020 and that writ petition is listed
for hearing along with connected matters. The 5 th judgment debtor
filed W.P.(C)No.17731 of 2020 against approving the 3 rd decree
holder as Manager of the school. In that writ petition this Court
granted interim stay of operation of Ext.P16 and further
proceedings pursuant thereto. In such circumstances, the District
O.P.(C)No.446 of 2021 & :-96-:
C.R.P.No.81 of 2021
Educational Officer is not in a position to take a decision in the
matter of approval of appointment of the 3 rd decree holder as the
Manager of the school.
11.19. In W.P.(C)No.17731 of 2020 filed by the 5 th judgment
debtor, this Court granted interim order on 25.08.2020, staying the
operation of Ext.P16 and all further proceedings pursuant to it, for a
period of one month. The said interim order, which was extended till
05.10.2020, was extended further for a period of three weeks, on
23.11.2020. Thereafter the interim order was never extended.
However, on 01.10.2020, this Court allowed R.P.No.694 of 2020
filed by the 5th judgment debtor, by recalling the judgment dated
05.08.2020 in W.P.(C)No.15943 of 2020 filed by the 3 rd decree
holder, whereby the District Educational Officer was directed to
consider and dispose of the proposal dated 14.07.2020 for change
of management of the school, within 60 days from the date of
receipt of the judgment, after hearing the parties involved in the
matter. After the order of this Court in R.P.No.694 of 2020, the
decree holders filed E.A.No.780 of 2020 before the execution court
on 14.10.2020. That execution application was filed during the
pendency of W.P.(C)No.15943 of 2020 filed by the 3 rd judgment
debtor seeking a writ of mandamus for time-bound consideration of
O.P.(C)No.446 of 2021 & :-97-:
C.R.P.No.81 of 2021
the very same proposal by the District Educational Officer.
11.20. The learned Government Pleader, during the course of
further arguments held on 30.06.2021, brought to the notice of this
Court that Fr.Mathew Pulimoottil, the Cor-Episcopa; the Managing
Committee of St.Ignatius Vocational Higher Secondary School
represented by its Chairman; and St.Ignatius Orthodox Syrian
Church represented by its Vicar Fr.A.J.Abraham (who is the 1 st
decree holder in E.P.No.565 of 2020) filed W.P.(C)No.704 of 2021
before this Court, on 08.01.2021, seeking a writ of certiorari to
quash the order dated 18.11.2020 of the District Educational
Officer, Ernakulam, whereby the proposal made by the Educational
Agency dated 14.07.2020 seeking approval for change of
management of the school was returned, for re-submission, as
directed in that communication. The further relief sought for is a
writ of mandamus commanding the District Educational Officer to
take back the proposal made by the Educational Agency dated
14.07.2020 and to dispose of the same in accordance with law,
after affording an opportunity of being heard.
11.21. From the Judge's papers in W.P.(C)No.704 of 2021 it is
seen that the affidavit filed in support of that writ petition is one
sworn to by the 1st decree holder. Though W.P.(C)No.704 of 2021 is
O.P.(C)No.446 of 2021 & :-98-:
C.R.P.No.81 of 2021
one filed on 08.01.2021, the pendency of that writ petition was
never brought to the notice of the execution court, by the 1 st decree
holder. The learned counsel for the 5th judgment debtor submitted
that, though the 5th judgment debtor is made a party to W.P.
(C)No.704 of 2021, he is yet to receive the notice issued by this
this Court, in that writ petition.
11.22. In E.A.No.780 of 2020 the decree holders have also
sought for a prohibitory injunction prohibiting the 5th judgment
debtor or his successors from functioning as the Manager of the
school, pending execution of the decree. The relief sought for in the
earlier application, i.e., E.A.No.709 of 2020 was an order of
prohibitory injunction prohibiting the 5 th judgment debtor and his
successors from effecting any sort of appointment in the school,
pending execution of the decree. The ad interim injunction granted
on 01.10.2020 in E.A.No.709 of 2020 has already been vacated by
the execution court by a detailed order dated 23.10.2020 [Ext.P9 in
O.P.(C)], for the reasons stated therein.
11.23. In Sukumaran K.A. v. Kerala Permanent Benefit
Fund Limited [2011 (2) KHC 955] this Court held that, res
judicata applies not only to suits but also to execution proceedings
as well. Explanation VII to Section 11 of the Code of Civil
O.P.(C)No.446 of 2021 & :-99-:
C.R.P.No.81 of 2021
Procedure, 1908 provides that the provisions of the Section shall
apply to a proceeding for the execution of a decree. Therefore, a
matter which was heard and finally decided in the execution
proceedings would bind the parties in another execution petition or
at a later stage of the same execution proceedings. That the
principle of res judicata would apply to different stages of the same
proceedings is well settled. [See: Satyadhyan Ghosal v. Deorajin
Debi - AIR 1960 SC 941; Prahlad Singh v. Col. Sukhdev Singh
- AIR 1987 SC 1145; Jayalakshmi v. Shanmugham - 1987 (2)
KLT SN 67 : AIR 1988 Ker. 128].
11.24. In Shalini Shyam Shetty v. Rajendra Shankar
Patil [(2010) 8 SCC 329] the Apex Court, while analysing the
scope and ambit of the power of superintendence under Article 227
of the Constitution, held that the object of superintendence, both
administrative and judicial, is to maintain efficiency, smooth and
orderly functioning of the entire machinery of justice in such a way
as it does not bring it into any disrepute. The power of interference
under Article 227 is to be kept to the minimum to ensure that the
wheel of justice does not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain public confidence
in the functioning of the tribunals and Courts subordinate to the
O.P.(C)No.446 of 2021 & :-100-:
C.R.P.No.81 of 2021
High Court.
11.25. In Jai Singh v. Municipal Corporation of Delhi
[(2010) 9 SCC 385], while considering the nature and scope of
the powers under Article 227 of the Constitution of India, the Apex
Court held that, undoubtedly the High Court, under Article 227 of
the Constitution, has the jurisdiction to ensure that all subordinate
courts, as well as statutory or quasi-judicial tribunals exercise the
powers vested in them, within the bounds of their authority. The
High Court has the power and the jurisdiction to ensure that they
act in accordance with the well established principles of law. It
cannot be exercised like a 'bull in a china shop', to correct all errors
of the judgment of a court or tribunal, acting within the limits of its
jurisdiction. This correctional jurisdiction can be exercised in cases
where orders have been passed in grave dereliction of duty or in
flagrant abuse of fundamental principles of law or justice.
11.26. In K.V.S. Ram v. Bangalore Metropolitan
Transport Corporation [(2015) 12 SCC 39] the Apex Court held
that, in exercise of the power of superintendence under Article 227
of the Constitution of India, the High Court can interfere with the
order of the Court or tribunal only when there has been a patent
perversity in the orders of the tribunal and courts subordinate to it
O.P.(C)No.446 of 2021 & :-101-:
C.R.P.No.81 of 2021
or where there has been gross and manifest failure of justice or the
basic principles of natural justice have been flouted.
11.27. In the instant case, the execution court committed a
grave error in entertaining E.A.No.780 of 2020, after the order
dated 23.10.2020 [Ext.P9 in O.P.(C)], whereby the ad interim
injunction granted on 01.10.2020, in E.A.No.709 of 2020 was
vacated, for the reasons stated therein. The decree holders have
not chosen to challenge that order in appropriate proceedings. On
01.10.2020, this Court allowed R.P.No.694 of 2020 filed by the 5 th
judgment debtor, by recalling the judgment dated 05.08.2020 in
W.P.(C)No.15943 of 2020 filed by the 3 rd decree holder, whereby the
District Educational Officer was directed to consider and dispose of
the proposal dated 14.07.2020 for change of management of the
school. The decree holders filed E.A.No.780 of 2020 before the
execution court on 14.10.2020, after the order of this Court in
R.P.No.694 of 2020, i.e., during the pendency of W.P.(C)No.15943
of 2020 filed by the 3 rd decree holder seeking a writ of mandamus
for time-bound consideration of the very same proposal by the
District Educational Officer. Moreover, the pendency of W.P.
(C)No.704 of 2021 filed by the 1 st decree holder and two others on
08.01.2021, seeking a writ of certiorari to quash the order dated
O.P.(C)No.446 of 2021 & :-102-:
C.R.P.No.81 of 2021
18.11.2020 of the District Educational Officer and also a writ of
mandamus commanding the District Educational Officer to take
back the proposal made by the Educational Agency dated
14.07.2020 and to dispose of the same in accordance with law, was
never brought to the notice of the execution court. The reasoning of
the execution court in the impugned order, for entertaining
E.A.No.780 of 2020, during the pendency of W.P.(C)No.15943 of
2020, is perverse and patently illegal, which warrants interference
of this Court in exercise of the supervisory jurisdiction under Article
227 of the Constitution of India.
11.28. In the result, O.P.(C)No.446 of 2021 is disposed of by
setting aside the impugned order of the execution court dated
06.02.2021 in E.A.No.780 of 2020 in E.P.No.565 of 2020 in
O.S.No.163 of 1977 and that application is dismissed; however,
without prejudice to the right of the 3 rd decree holder to prosecute
W.P.(C)No.15943 of 2020 and the right of the 1st decree holder to
prosecute W.P.(C)No.704 of 2021 pending before this Court. No
order as to cost.
12. In C.R.P.No.81 of 2021 filed under Section 115 of the
Code of Civil Procedure, 1908, the challenge is against the common
order dated 06.02.2021 of the execution court in E.P.No.565 of
O.P.(C)No.446 of 2021 & :-103-:
C.R.P.No.81 of 2021
2020 in O.S.No.163 of 1977. In this Civil Revision Petition, the
petitioners seek an order to set aside the said common order and to
dismiss E.P.No.565 of 2020 in O.S.No.163 of 1977 as not
maintainable.
12.1. As already noticed, O.S.No.163 of 1977 was one filed
seeking a declaration that the 1 st defendant Church shall be
administered in all matters of religious worship and administration
of assets under the 1934 Constitution. The plaintiffs have also
sought for a consequential injunction. The trial court dismissed the
suit for want of sanction under Section 92 of the Code of Civil
Procedure, 1908. In R.F.A.No.427 of 2003, though the defendants
urged a contention that St.Ignatius Orthodox (Jacobite) Syrian
Church, Kanjiramattom is not a constituent of the Malankara
Church, but an independent Church established by the members of
the Parish, without affirming allegiance to the 1934 Constitution, it
was conceded before this Court by the learned Senior Counsel, as
instructed by the learned counsel for the defendants, that the said
contention is not being pressed and therefore, the defendants admit
that the 1934 Constitution is applicable.
12.2. Taking note of the above stand taken by the defendants
and also the law laid down by the Apex Court in P.M.A.
O.P.(C)No.446 of 2021 & :-104-:
C.R.P.No.81 of 2021
Metropolitan [AIR 1995 SC 2001] and K.S. Varghese [(2017)
15 SCC 333], this Court held that, merely because O.S.No.163 of
1977 has been dismissed by the trial court finding it to be bad for
want of leave, the defendants cannot claim control or management
of the Church, contrary to the declarations in the aforesaid
judgments; and therefore, the suit deserves to be decreed to that
extent. By the judgment dated 11.02.2020 in R.F.A.No.427 of 2003,
this Court set aside the impugned judgment and decree of the trial
court and consequently, decreed O.S.No.163 of 1977, declaring that
the 1st defendant Church, namely, St.Ignatius Orthodox (Jacobite)
Syrian Church, Kanjiramattom, shall be administered in all matters
of religious worship and administration of assets as per the 1934
Constitution. The decree in O.S.No.163 of 1977, which is marked as
Ext.A1 in E.P.No.565 of 2020, reads thus:
"This Regular First Appeal coming on 11.02.2020 for hearing,
upon perusing the grounds of the appeal, the judgment of the
lower court and the material papers in the case and upon
hearing the arguments of Sri.K.N.Chandrababu, Advocate for
the 1st appellant, Sri.S.Sreekumar, Senior Advocate for the 2 nd
appellant and additional appellant 3 and M/s.P.Martin Jose,
Sri.Prijith, Thomas P.Kuruvila, Advocates for the additional
appellant 3, Sri.K.J.Kuriachan, Advocate for respondents 1 to
10, 13 and 14 and M/s.N.Sukumaran and S.Shyam, Advocate
for the 7th respondent, Sri.P.Viswanathan, Senior Advocate
O.P.(C)No.446 of 2021 & :-105-:
C.R.P.No.81 of 2021
along with Sri.P.George Varghese, Sri.Sunil N.Shenoy,
Sri.Deepak.B, Sri.Vinod K.V, Advocates for the 11 th respondent,
Sri.P.R.Venkatesh, Advocate for the 14 th respondent,
Sri.K.C.Eldho, Advocate for the 15 th respondent and Sri.Saji
Varghese, Kakkattu Mattathil, Advocate for respondents 16 and
17, this Court conspectusly of the view that the suit has been
dismissed by the Trial Court finding it to be bad for want of
leave, the defendants cannot claim control or management of
the church, contrary to the declarations in the aforejudgments,
both order and decree;
(1) That the impugned judgment and decree be and are
hereby set aside;
(2) The Suit is hereby decreed to the extent, declaring
that the first defendant church/1st respondent herein
namely, St.Ignatius Orthodox (Jacobite) Syrian
Church, Kanjiramattom be administered in all matters
of religious worship and administration of assets as
per the 1934 Constitution; and
(3) That, this Regular First Appeal be and is hereby
allowed." (underline supplied)
12.3. On 30.09.2020, the decree holders filed E.P.No.565 of
2020 before the First Additional District Court, Ernakulam, to
execute the decree in O.S.No.163 of 1977, in terms of the
judgment of this Court dated 11.02.2020 in R.F.A.No.427 of 2003.
In column No.9 of the execution petition it is stated that as per the
decree, it is declared that the 1 st defendant Church/St.Ignatius
Orthodox Syrian Church, Kanjiramattom, be administered in all
O.P.(C)No.446 of 2021 & :-106-:
C.R.P.No.81 of 2021
matters of religious worship and administration of assets as per the
1934 Constitution by allowing the Regular First Appeal R.F.A.No.427
of 2003 of the High Court of Kerala dated 11.02.2020. Column
No.12 of the execution petition, which deals with the mode in which
the assistance of the court is required, reads thus;
"12. The mode in which the assistance of the court is required;
(a) Issue warrant against the judgment debtors and to
direct them to handover the
i. Key of the Church;
ii. Key of the office room (parsonage);
iii. Key of the Parish Hall;
iv. Key of the offertory boxes installed in five places;
v. Documents of landed properties of the Church;
vi. Registers such as Marriage Register, Baptism
Register, funeral register, etc.;
vii. Several articles such as gold plated cross, silver
plated cross, wooden cross and other items being
used in the Church;
viii. The ambulance vehicle No.KL-39/G-9734
belonging to the Church;
ix. Key/all keys of St.Ignatius Vocational and Higher
Secondary School building.
(b) issue order of attachment of the properties of judgment
debtors' ensuring the execution of the decree.
(c) issue such other reliefs that are deemed fit and proper
in the course of the proceeding of execution being
conducted by this Hon'ble Court."
12.4. As already noticed hereinbefore, in K.S. Varghese the
O.P.(C)No.446 of 2021 & :-107-:
C.R.P.No.81 of 2021
Apex Court held that, once there is a Malankara Church it has to
remain as such. No group or denomination can take away the
Church and form another group for its management as that would
virtually tantamount to usurping its properties and the Church
itself. When the Church has been created and is for the benefit of
beneficiaries, it is not open for beneficiaries even by majority to
usurp its property or management. The properties would always
remain to be Malankara Church properties. Only office-holders have
to subscribe to the 1934 Constitution as held by the Court. The
Parishioners can take no Church property away, neither Catholicos
faction by majority. It has to remain in Malankara Church. Neither
the Church nor the Cemetery can be confiscated by anybody. It has
to remain with Parishioners as per the customary rights and nobody
can be deprived of right one enjoys being a Parishioner in the
Church or to be buried honourably in the cemetery, in case he
continues to have faith in Malankara Church. The Malankara
Church, its properties and other matters are to be governed by the
1934 Constitution. While individual Parishioners may choose to
leave the Church, there is no question of even a majority of the
Parishioners in the Parish Assembly by themselves being able to
take the movable or immovable properties out of the ambit of the
O.P.(C)No.446 of 2021 & :-108-:
C.R.P.No.81 of 2021
1934 Constitution, without the approval of the Church hierarchy. In
existing system of Malankara Church, a Parish Church, which is a
part of Malankara Church, cannot be usurped even by majority in
Church under the guise of formation of new Church. The existing
majority at a given time in any Parish Church cannot be permitted
to take away the assets of the Church at the expense of those who
adhere to the original Trust.
12.5. In K.S. Varghese the Apex Court noticed that the 1995
judgment settled such disputes, between the parties, in which the
Court tried its best to take care of the prevailing situation while
passing the decree. Faith is tried to be unnecessarily divided vis-a-
vis the office of Catholicos and the Patriarch. Faith of Church is in
the Jesus Christ. It would not be open to any faction or group to
adopt any particular system of management of Churches and to
have a parallel system of managing authorities under the guise of
spiritual supremacy. Under the garb of spiritual supremacy which
had reached a vanishing point due to the establishment of
Catholicos and Kalpana, and the 1934 Constitution which has been
accepted and is binding, a parallel system of governance of
Churches would not be in the interest of the Church and would
destroy it. For reasons best known to the parties, fight is going on
O.P.(C)No.446 of 2021 & :-109-:
C.R.P.No.81 of 2021
regarding the management which is wholly uncalled for. If Church
has to survive, obviously this must stop and let the blessings of the
Christ fall upon the believers, actual followers of his teaching. This
is the only way by which we can expect that peace will come to the
Church.
12.6. In Mathews Mar Koorilos [(2018) 9 SCC 672] a
Three-Judge Bench of the Apex Court reiterated that, as per the
consistent view taken in Thukalan Paulo Avira, Most Rev.
P.M.A. Metropolitan and K.S. Varghese, 1934 Constitution is
valid and binding upon the Parishioners. The Parish Church has to
be managed as per the powers conferred under the 1934
Constitution. It is not open to any individual Church to have a
parallel system of management under the guise of spiritual
supremacy in the Patriarch. As held in K.S. Varghese, full effect
has to be given to the finding that the spiritual power of the
Patriarch has reached to a vanishing point. Consequently, he cannot
interfere in the governance of Parish Churches by appointing Vicar,
Priests, Deacons, Prelates (High Priests), etc. and thereby cannot
create a parallel system of administration.
12.7. In Mathews Mar Koorilos the Three-Judge Bench held
that, the conclusions in Para.228 of K.S. Varghese are well in
O.P.(C)No.446 of 2021 & :-110-:
C.R.P.No.81 of 2021
consonance with Thukalan Paulo Avira and Most Rev. P.M.A.
Metropolitan judgments. The detailed discussions and conclusions
arrived at in K.S. Varghese settled the disputes between the
appellant Patriarch and the respondent Malankara. As per the
consistent view taken in Thukalan Paulo Avira, Most Rev.
P.M.A. Metropolitan and K.S. Varghese, 1934 Constitution is
valid and binding upon the Parishioners. The Parish Church has to
be managed as per the powers conferred under the 1934
Constitution. It is not open to any individual Church to have a
parallel system of management in the Churches under the guise of
spiritual supremacy in the Patriarch. As held in K.S. Varghese, full
effect has to be given to the finding that the spiritual power of the
Patriarch has reached to a vanishing point. Consequently, he cannot
interfere in the governance of Parish Churches by appointing Vicar,
Priests, Deacons, Prelates (High Priests), etc. and thereby cannot
create a parallel system of administration.
12.8. In view of the law laid down in K.S.Varghese and
reiterated in Mathews Mar Koorilos, once there is a Malankara
Church it has to remain as such. No group or denomination can
take away the Church and form another group for its management.
As the Church is for the benefit of beneficiaries, it is not open for
O.P.(C)No.446 of 2021 & :-111-:
C.R.P.No.81 of 2021
the beneficiaries even by majority to usurp its property or
management. Neither the Church nor the cemetery can be
confiscated by anybody. It has to remain with Parishioners as per
the customary right and nobody can be deprived of right on enjoys
being a Parishioner in the Church or to be buried honourably in the
cemetery in case he continues to have faith in Malankara Church.
While individual Parishioners may choose to leave the Church, there
is no question of even a majority of the Parishioners in the Parish
Assembly by themselves being able to take the movable or
immovable properties out of the 1934 Constitution, without the
approval of the Church hierarchy. It would not be open to any
faction or group to adopt any particular system of management of
Churches and to have a parallel system of managing authorities
under the guise of spiritual supremacy.
12.9. On 08.03.2021, when this civil revision petition came up
for consideration along with the connected matter, during the
course of arguments, on a specific query made by this Court, the
learned Senior Counsel for respondents 1 to 3 submitted that, the
1st respondent in both these cases, who is the Vicar of St.Ignatius
Orthodox Syrian Church, is the one appointed in terms of the 1934
Constitution, who is conducting services, and that no parallel
O.P.(C)No.446 of 2021 & :-112-:
C.R.P.No.81 of 2021
services are being conducted in the Church. The said submission
made by the learned Senior Counsel was recorded.
12.10. The learned Senior Counsel for the petitioners
contended that, as the decree in O.S.No.163 of 1977, in terms of
the judgment of this Court in R.F.A.No.427 of 2003, is declaratory
in nature, without any consequential mandatory or prohibitory
injunction, the same is not an executable decree. Even in the case
of a declaratory decree with consequential mandatory or prohibitory
injunction, for invoking the provisions under Order XXI Rule 32 of
the Code of Civil Procedure, the decree holder has to state in the
execution petition as to how such a decree has been violated by the
judgment debtors. As contended in the objection filed in E.P.No.565
of 2020, there is no allegation in the execution petition that the
judgment debtors have violated the decree. There is no injunction,
either mandatory or prohibitory, in terms of the judgment in
R.F.A.No.427 of 2003 and as such, no arrest warrant can be issued.
12.11. Per contra, the learned Senior Counsel for respondents
1 to 3, after referring to Para.228.20 of the judgment of the Apex
Court in K.S. Varghese contended that, since the 1934
Constitution is enforceable, the declaratory relief granted in
O.S.No.163 of 1977 that St.Ignatius Orthodox Syrian Church shall
O.P.(C)No.446 of 2021 & :-113-:
C.R.P.No.81 of 2021
be administered in all matters of religious worship and
administration of assets as per the 1934 constitution is enforceable.
It is not the statutory requirement that the decree holder has to
state in the execution petition as to how the decree has been
violated by the judgment debtors. The affidavits filed in support of
the execution applications filed in E.P.No.565 of 2020 contains
necessary allegations as to violation of the decree by the judgment
debtors. In view of the law laid down by the Apex Court in Fr.
Issac Mattammel Cor-Episcopa [(2019) 10 SCC 606] it is the
constitutional duty of all concerned to obey the judgment and order
of the Apex Court in K.S. Varghese. The Apex Court restrained all
the civil courts and the High Court not to pass any order in violation
of the mandate of the decision in K.S. Varghese.
12.12. In Raman Nambissan v. Damodaran Nambissan
[1995 (1) KLJ 566], a decision relied on by the learned Senior
Counsel for the petitioners, this Court was dealing with a case in
which the revision petitioner was the decree holder, who filed
execution petition for the enforcement of mandatory decree in
O.S.No.126 of 1976. He also sought enforcement of the prohibitory
injunction against the respondents in terms of the decree. The
executing court dismissed the execution petition holding that
O.P.(C)No.446 of 2021 & :-114-:
C.R.P.No.81 of 2021
enforcement of mandatory injunction cannot be granted as it is
barred by limitation. Further, the revision petitioner has no
grievance or case that the prohibitory injunction granted in his
favour was ever disobeyed or violated by the respondents. Hence
he cannot seek the enforcement of the decree of prohibitory
injunction. Before this Court, the contention of the revision
petitioner was that, even if the enforcement of mandatory
injunction as per the decree is barred by limitation, the prayer for
enforcement of the decree for prohibitory injunction should have
been allowed by the executing court. This Court noticed that, Order
XXI, Rule 32 of the Code is concerned with decree for specific
performance for restitution of conjugal rights or for injunction. Rule
32 provides that where the party against whom a decree for the
specific performance of a contract, or for restitution of conjugal
rights, or for injunction, has been passed, has had an opportunity
of obeying the decree and has wilfully failed to obey it, the decree
may be enforced in the case of a decree for restitution of conjugal
lights by the attachment of his property or, in the case of a decree
for the specific performance of a contract, or for injunction by his
detention in the civil prison, or by the attachment of his property,
or by both. When a decree is sought to be enforced under Order
O.P.(C)No.446 of 2021 & :-115-:
C.R.P.No.81 of 2021
XXI, Rule 32, there must be specific averments in the execution
petition that the party against whom the decree for injunction has
been granted despite opportunity of obeying the decree has wilfully
failed to obey it and hence execution of the decree has become
necessary. When execution petition is filed it is elementary to state
that the respondents against whom decree for injunction was
passed wilfully disobeyed it despite opportunity of obeying it. In
other words, wilful disobedience of the decree by the respondents
should have been highlighted in the petition.
12.13. In Raman Nambissan, on the facts of the case, this
Court noticed that, as there is no specific averment as
contemplated under Order XXI, Rule 32 of the Code in the petition,
revision petitioner cannot successfully proceed with the matter in
execution. As the alleged violation of the decree has not been
specifically pleaded in the execution petition, the executing court
was justified in holding that sufficient averments are not there for
enforcement of the decree for prohibitory injunction. When the
statute mandates specific details to be mentioned by the decree
holder, he has to state it in express terms and cannot build up a
case by implication on indefinite and vague averments. Therefore,
this Court dismissed the Civil Revision Petition as devoid of merits.
O.P.(C)No.446 of 2021 & :-116-:
C.R.P.No.81 of 2021
This Court had made it clear that it will be open to the revision
petitioner to file fresh execution petition with necessary pleadings.
12.14. In Padmakshi Amma v. Hashim [1999 (1) KLT
96], another decision relied on by the learned Senior Counsel for
the petitioners, this Court was dealing with a case in which the
revision petitioners/ defendants are the legal heirs of Raman, who
was the original tenant of a building in which a hotel is being
conducted. The landlord filed suit for an injunction restraining the
revision petitioners from making any alteration, addition or
modification to the plaint schedule building. The suit was filed on
the premise that the tenants have effected certain alteration in the
building. The suit was decreed restraining the tenants from making
any alteration, addition, modification and from causing any damage
and waste to the plaint schedule building. Subsequently the
landlord filed E.P.No.67 of 1998, praying for arrest and detention of
the judgment debtors in civil prison, for attachment of both
movable and immovable properties and to stop all the work carried
on in the decree schedule properties. In the execution petition it
was averred as follows;
11. The mode in which The judgment debtors have
the assistance of wilfully disobeyed the decree
the court is required and they are carrying on
O.P.(C)No.446 of 2021 & :-117-:
C.R.P.No.81 of 2021
alteration work and modification
work, committing damage and
waste in violation of the decree.
It is therefore, prayed that this
Hon'ble Court may be pleased
to:
a Issue notice to the judgment
debtors why they should not be
detained in Civil Prison.
b The judgment debtors may be
arrested and detained in Civil
Prison for enforcement of the
decree.
c by attachment of both movable
and immovable properties of the
judgment debtors
d to stop all the work carried on in
the decree schedule property
rendering police help to the de-
cree holder
e and to allow such other
appropriate reliefs the decree
holder may pray for in enforcing
the decree which the Court may
deem fit to grant for executing
the decree.
After getting the notice, the respondents contended that the
execution petition is not maintainable as execution petition does
not disclose the basis on which the violation is committed. This
objection was taken as a preliminary ground. The court below
O.P.(C)No.446 of 2021 & :-118-:
C.R.P.No.81 of 2021
considered the same; but dismissed it. The court below took the
view that the averment in the execution petition in Para.11 is
enough. In the above view of the matter, the court below held that
the petition was maintainable. The said order was under challenge
in a Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure, 1908. After considering the rival contentions, this
Court held that, the remedy provided under Order XXI, Rule 32 of
the Code with regard to injunction is to take action against the
judgment debtors for violation of injunction. The injunction consists
of both mandatory and prohibitory. For this purpose, the decree
holder has to show in the execution petition as to how the
injunction has been violated. The averments should show the acts
made in violation of decree and when was it done. Even if such an
averment is not contained in the execution petition, at least the
decree holder should have filed an affidavit regarding the nature of
the violation made. On the facts of the case, this Court observed
that, the object of the decree holder, as it appears, was to find out
whether there is any violation by filing the execution petition and
by sending a Commissioner to find out if there is any violation. The
execution petition cannot be made use of collecting evidence on
behalf of the decree holder. In that view of the matter, the
O.P.(C)No.446 of 2021 & :-119-:
C.R.P.No.81 of 2021
execution petition is not maintainable, since it has not given the
details of the violation. However, this will not prevent the decree
holder from filing a fresh execution petition with necessary
ingredients.
12.15. In Chellamma and others v. Santhimadam,
Sivakshetram, Venjaramoodu and others [2009 (4) KHC
985], another decision relied on by the learned Senior Counsel for
the petitioners, this Court was dealing with a case in which the
challenge made in the Civil Revision Petition filed under Section 115
of the Code of Civil Procedure, arises out of a proceedings under
Order XXI, Rule 32. The 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. The decree holders
initiated proceedings against the judgment debtors by filing
execution petition under Order XXI, Rule Rule 32 of the Code. 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 Committee was
prevented by the 2nd decree holder from effectively managing the
temple. The executing court came to the conclusion that the
O.P.(C)No.446 of 2021 & :-120-:
C.R.P.No.81 of 2021
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. The court further
directed 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 2 nd 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 executing court was under challenge in the
revision.
12.16. In Chellamma this Court noticed that, in the
impugned order, no attempt was made by the executing court to
examine the scope of the decree granted in the suit in favour of the
decree holders and how far the proceeding under Order XXI, Rule
32 of the Code would lie against the judgment debtors on the
imputations levelled as to their disobedience or violation of the
decree of injunction. 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 executing court without examining the merit of
O.P.(C)No.446 of 2021 & :-121-:
C.R.P.No.81 of 2021
that contention with reference to the decree of injunction passed in
the suit in favour of the 2nd 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 2 nd decree holder, on the death of the 1 st
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 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 executing court in ascertaining the scope of the
decree of injunction granted in the suit. Unfortunately, the
executing court proceeded with the enquiry even raising points for
O.P.(C)No.446 of 2021 & :-122-:
C.R.P.No.81 of 2021
determination as if the judgment debtors are accused persons liable
to be tried and punished for disobedience of the decree of
injunction. Without even examining the question and entering a
definite finding how the 3rd respondent, a serving Soldier, had
disobeyed the decree and in what manner he had violated the
injunction by his wilful disobedience, the executing court has
ordered for his detention also in the civil prison for one month. The
execution petition filed by the 2nd decree holder 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.
This Court held that, 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 are essential to hold that
they or any of them are condemners, to punish them under Order
XXI, Rule 32 of the Code. Therefore, this Court set aside the
impugned order and the executing court was directed to examine
the matter afresh, taking note of the above observations, and
dispose of the proceedings initiated by the decree holders under
Order XXI, Rule 32 of the Code, in accordance with law.
12.17. In the instant case, there is absolutely no allegation in
O.P.(C)No.446 of 2021 & :-123-:
C.R.P.No.81 of 2021
E.P.No.565 of 2020 that the judgment debtors have violated the
decree in O.S.No.163 of 1977, in terms of the judgment of this
Court in R.F.A.No.427 of 2003. In the execution petition, the decree
holders have no case that the judgment debtors have taken any
movables of the Church out of the ambit of the 1934 Constitution.
As already noticed hereinbefore, on 08.03.2021, this Court
recorded the submission made by the learned Senior Counsel for
respondents 1 to 3 that the 1st respondent in both the cases, who is
the Vicar of St.Ignatius Orthodox Syrian Church, is the one
appointed in terms of the 1934 Constitution, who is conducting
services, and that no parallel services are being conducted in the
Church.
12.18. In E.P.No.565 of 2020, the decree holders have no
case that the judgment debtors are disentitled from participating in
the religious services and administration of the Church. In the
impugned order the execution court noticed that, the 12 registers
produced by the judgment debtors in support of their claim, which
are of the period from the year 1949 onwards, would go to show
that the decree holders as well as the judgment debtors and their
predecessors were members of the Church. However, the execution
court, even in the absence of a proper pleadings, arrived at a
O.P.(C)No.446 of 2021 & :-124-:
C.R.P.No.81 of 2021
conclusion that, after the split in the year 2002 only the members
who belong to Orthodox faction are the Parishioners of the Church.
Neither the judgment debtors nor those who did not accept the
1934 Constitution can participate in the religious services and
administration of the Church. The learned Senior Counsel for
respondents 1 to 3 contended that the above findings of the
execution court, which are supported by the documents placed on
record, cannot be said to be either arbitrary or illegal.
12.19. The learned Senior Counsel for respondents 1 to 3
relied on the decision of this Court in Joy P.M. and another v.
P.V. Johny and others [2020 (2) KHC 466] in order to contend
that the Vicar is entitled as per the 1934 Constitution to conduct
elections and as such, after the declaration of law by the Apex
Court in K.S. Varghese, the judgment debtors cannot raise a valid
challenge against the validity of the Edavaka Yogam conducted on
08.03.2020.
12.20. In Joy P.M. this Court was dealing with two appeals
arising out of the judgment and decree of the District Court,
Ernakulam in O.S.No.42 of 2003. The plaintiffs filed the said suit
with respect to the management and attendant issues of St. John's
Orthodox Syrian Church, Kanniyattunirappu. Pending suit, the Apex
O.P.(C)No.446 of 2021 & :-125-:
C.R.P.No.81 of 2021
Court in K.S. Varghese declared that the management and control
of all the constituent Churches under the Malankara Church will be
as per the 1934 constitution. Therefore, the court below decreed
the suit in the following manner:
"1. D2, D3 and D5 to D22 are removed from the posts of
trustees, secretary and managing committee members of D1
church, manager of St.John's High School and secretary of
St.John's hospital belonging to the church, by a mandatory
injunction.
2. D2, D3 and D5 are restrained by a perpetual injunction from
functioning as trustees and secretary and D8 to D22 are
restrained by a perpetual injunction from functioning as
managing committee members of the first defendant church.
3. D6 and D7 are restrained by a perpetual injunction from
functioning as the manager and secretary respectively of St.
John's High School and St. John's Hospital belonging to the
first defendant church.
4. The 4th defendant vicar is directed to convene a pothuyogam
of the first defendant church and conduct elections to the
managing committee including the posts of the trustees and
secretary of the church, the manager of St. John's school and
the secretary of St.John's hospital.
5. The process shall be supervised by Adv. A.Balagopal, the
commissioner appointed by this Court as per the direction of
the Hon'ble High Court. It is made clear that the further role of
the commissioner is only the supervision of the election, which
as per the 1934 constitution is to be done by the vicar. It is
clarified and confirmed that the church and its institutions are
liable to be governed under the 1934 constitution of Malankara
O.P.(C)No.446 of 2021 & :-126-:
C.R.P.No.81 of 2021
Orthodox Syrian Church."
The judgment and decree of the court below was under challenge in
R.F.A.Nos.541 of 2019 and 545 of 2019 filed by defendants 3 and
13. After considering the rival contentions this Court noticed that
direction Nos.1, 2 and 3 in the decree are incapable of any further
contest, since they are only axiomatic consequences of the
declaration of law by the Apex Court that the Church will be
governed and managed only under the 1934 Constitution. After
considering the rival contentions this Court noticed that the
essential question surviving is whether the Vicar is entitled as per
the 1934 Constitution to conduct elections and whether the findings
of the District Court with respect to such competence is, in any
manner, in error. This Court held that going by the 1934
Constitution, it is only the Vicar, who could have conducted the
elections and who could have taken all steps for the same.
Therefore, the court below has acted correctly, in allowing the
elections to be conducted by the Vicar, to be supervised by the
Advocate Commissioner, so as to ensure that the provisions of the
1934 Constitution are in no manner violated.
12.21. In O.S.No.17 of 2016 pending before the First
Additional District Court, Ernakulam, the judgment debtors in the
O.P.(C)No.446 of 2021 & :-127-:
C.R.P.No.81 of 2021
E.P.No.565 of 2020 have filed written statement raising counter
claim (Ext.B2) for conducting proper election, with participation of
all eligible Parishioners, as per the 1934 Constitution, under the
supervision of court. In I.A.No.17 of 2020 filed in that suit they
have raised a specific contention that the documents relating to the
meeting of the Edavaka Yogam alleged to have been conducted on
08.03.2020 are fabricated documents. It is also an admitted fact
that O.S.No.327 of 2020 is pending before the Munsiff's Court,
Ernakulam, in which a mandatory injunction is sought for directing
the Vicar of the Church to conduct a proper election to the
managing committee of the Church and also to the managing
committee of the school, in accordance with the 1934 Constitution
and the approved constitution of the school, after preparing the
voters' list of the Church by incorporating all eligible and qualified
Parishioners in accordance with the 1934 Constitution. The validity
of the Edavaka Yogam alleged to have been conducted on
08.03.2020 has to be decided in those proceedings pending before
the civil court.
12.22. In Gurdev Singh v. Narain Singh [(2007) 14 SCC
173] the Apex Court held that the executing court cannot go
behind the decree. As the decree did not clothe the decree holder to
O.P.(C)No.446 of 2021 & :-128-:
C.R.P.No.81 of 2021
pray for execution of the decree by way of removal of the trees, the
same could not have been directed by the executing court in the
name of construing the spirit of the decree under execution. Paras.7
to 9 of the judgment read thus;
"7. Mr. Swarup Singh, learned senior counsel appearing on
behalf of the appellant would submit that the executing Court
as also the High Court committed a manifest error in
interpreting the decree.
8. We agree with the said contention. A bare perusal of the
decree in question would clearly demonstrate that the
appellant herein was restrained by a permanent injunction
from planting any tree on khasra No.17/2 on the one side and
khasra Nos.218/1 and 17/1 on the other side. The decree did
not speak of removal of any tree which had already been
planted. The executing Court, as noticed hereinbefore, while
interpreting the said decree proceeded completely on a wrong
premise to hold that there should not be any tree within two
karams on either side of the common boundary of the parties.
Such an interpretation evidently is not in consonance with the
tenor of the decree. A jurisdictional error, thus, has been
committed by the High Court.
9. It is well stated that executing Court cannot go behind the
decree. As the decree did not clothe the decree holder to pray
for execution of the decree by way of removal of the trees, the
same could not have been directed by the learned executing
Court in the name of construing the spirit of the decree under
execution."
12.23. In Rameshwar Das Gupta v. State of U.P. [(1996)
O.P.(C)No.446 of 2021 & :-129-:
C.R.P.No.81 of 2021
5 SCC 728] a Three-Judge Bench of the Apex Court reiterated that,
an executing court cannot travel beyond the order or decree under
execution. It gets jurisdiction only to execute the order in
accordance with the procedure laid down under Order XXI of the
Code of Civil Procedure, 1908. It is true that the High Court
normally exercises its revisional jurisdiction under Section 115 Code
of Civil Procedure, 1908, but once it is held that the executing court
has exceeded its jurisdiction, it is the duty of the High Court to
correct the same. Para.4 of the said decision reads thus;
"4. It is well settled legal position that an executing Court
cannot travel beyond the order or decree under execution, It
gets jurisdiction only to execute the order in accordance with
the procedure laid down under Order XXI, CPC. In view of the
fact that it is a money claim, what was to be computed is the
arrears of the salary, gratuity and pension after computation
of his promotional benefits in accordance with the service law.
That having been done and the court having decided the
entitlement of the decree-holder in a sum of Rs.1,97,000/-
and odd, the question that arises is whether the executing
Court could step out and grant a decree for interest which was
not part of the decree for execution on the ground of delay in
payment or for unreasonable stand taken in execution? In our
view, the executing Court has exceeded its jurisdiction and the
order is one without jurisdiction and is thereby a void order. It
true that the High Court normally exercises its revisional
jurisdiction under Section 115 of CPC but once it is held that
the executing Court has exceeded its jurisdiction, it is but the
O.P.(C)No.446 of 2021 & :-130-:
C.R.P.No.81 of 2021
duty of the High Court to correct the same. Therefore, we do
not find any illegally in the order passed by the High Court in
interfering with and setting aside the order directing payment
of interest."
12.24. In J and K Bank Ltd. v. Jagdish C. Gupta [(2004)
10 SCC 568] a Three-Judge Bench of the Apex Court held that, it
is no more res integra that the executing court has no jurisdiction
to go behind the decree. It is not disputed that the decree did not
contain any direction to promote the respondent to the post of
Chief Manager. Under such circumstances, the executing court as
well as the High Court fell in error in issuing directions in execution
case that the respondent be promoted to the post of Chief Manager.
12.25. In V. Ramaswami Aiyengar v. T.N.V. Kailasa
Thevar [AIR 1951 SC 189] a Four-Judge Bench of the Apex Court
held that the duty of the executing court is to give effect to the
terms of the decree that has already been passed and beyond
which they could not go. It is true that the executing court has to
interpret the decree, but under the guise of interpretation it could
not make a new decree for the parties. Paras.6 to 8 of the decision
read thus;
"6. The learned Judges of the High Court observed at the
outset that in the working of the Madras Agriculturists' Relief
Act alongside the provisions of the Transfer of Property Act
O.P.(C)No.446 of 2021 & :-131-:
C.R.P.No.81 of 2021
several curious and novel situations had arisen for which it was
not possible always to find logical solutions. They then
proceeded to discuss the various decisions of the Madras High
Court which had a bearing on this point and the conclusion
which they reached may be summed up in their words as
follows;
"It is no doubt somewhat odd that when a person is
declared liable to pay a larger amount he should on
payment or tender of a smaller amount get his
property exonerated from liability but this is inherent
in and arises out of the proposition established by the
decisions already dealt with, namely, that by the
application of the principle of unity and indivisibility of
a mortgage decree a non- agriculturist can indirectly
get relief which he cannot directly get".
7. It seems to us that the High Court's approach to the case
has not been a proper one and the conclusion it has reached
cannot be supported in law.
8. The learned Judges appear to have overlooked the fact that
they were sitting only as an executing court and their duty was
to give effect to the terms of the decree that was already
passed and beyond which they could not go. It is true that
they were to interpret the decree, but under the guise of
interpretation they could not make a new decree for the
parties."
12.26. In State of M.P. v. Mangilal Sharma [(1998) 2 SCC
510] the Apex Court held that, a suit for mere declaration to any
legal character is maintainable under Section 34 of the Specific
Relief Act, 1963, though it has been held that the Section is not
O.P.(C)No.446 of 2021 & :-132-:
C.R.P.No.81 of 2021
exhaustive. A declaratory decree merely declares the right of the
decree-holder vis-à-vis the judgment debtor and does not in terms
direct the judgment debtor to do or refrain from doing any
particular act or thing. Since in the present case decree does not
direct reinstatement or payment of arrears of salary, the executing
court could not issue any process for the purpose as that would be
going outside or beyond the decree. The respondent as a decree-
holder was free to seek his remedy for arrears of salary in the suit
for declaration. The executing court has no jurisdiction to direct
payment of salary or grant any other consequential relief which
does not flow directly and necessarily from the declaratory decree.
Paras.4 to 6 of the judgment read thus;
"4. It appears to us that the courts below did not go by even
the basic principles of law. A suit for mere declaration to any
legal character is maintainable under Section 34 of the Specific
Relief Act, 1963, though it has been held that the section is not
exhaustive. There is a proviso to the section which bars any
such declaration where the plaintiff, being able to seek further
relief, omits to do so. Section 34, in relevant part, is as under:
"34. Discretion of court as to declaration of status or
right.- Any person entitled to any legal character, or
to any right as to any property, may institute a suit
against any person denying, or interested to deny,
his title to such character or right, and the court may
in its discretion make therein a declaration that he is
O.P.(C)No.446 of 2021 & :-133-:
C.R.P.No.81 of 2021
so entitled, and the plaintiff need not in such suit ask
for any further relief:
Provided that no court shall make any such declara-
tion where the plaintiff, being able to seek further re-
lief than a mere declaration of title, omits to do so."
5. Normally in a case like the present one the plaintiff when
seeking relief of declaration that he continues to be in service
would also seek consequential reliefs of reinstatement and
arrears of salary. This the respondent as plaintiff did not do so
as the Government not being a private employer would
certainly respect a mere decree of declaration. This in fact the
appellant did and the respondent has been reinstated.
Moreover, once the government servant is appointed to his
post or office, he acquires a status and his rights and
obligations are no longer determined by consent of both
parties but by statute or statutory rules which may be framed
by the Government. The legal position of a government
servant is more one of status than of contract. In Roshan Lal
Tandon v. Union of India [AIR 1967 SC 1889] this Court
observed that the hallmark of status is the attachment to a
legal relationship of rights and duties imposed by the public
law and not by mere agreement of the parties and that the
emoluments of the government servant and his terms of
service are governed by statute or statutory rules which may
be unilaterally altered by the Government without the consent
of the employee. It is, therefore, quite clear that the appellant
has rightly reinstated the respondent in service as the decree
gave a declaration to his legal status of having remained a
government servant throughout as if the order of termination
of service never existed. It was not necessary for the
respondent to seek relief of arrears of salary in a suit for
O.P.(C)No.446 of 2021 & :-134-:
C.R.P.No.81 of 2021
declaration as he may be satisfied with a mere relief for
declaration that he continues to be in service. Of course if he
afterwards claims arrears of salary in a suit for the period
prior to the relief of declaration he may face the bar of Order
II Rule 2 of the Code of Civil Procedure.
6. A declaratory decree merely declares the right of the
decree-holder vis-à-vis the judgment-debtor and does not in
terms direct the judgment-debtor to do or refrain from doing
any particular act or thing. Since in the present case decree
does not direct reinstatement or payment of arrears of salary
the executing court could not issue any process for the
purpose as that would be going outside or beyond the decree.
The respondent as a decree-holder was free to seek his
remedy for arrears of salary in the suit for declaration. The
executing court has no jurisdiction to direct payment of salary
or grant any other consequential relief which does not flow
directly and necessarily from the declaratory decree. It is not
that if in a suit for declaration where the plaintiff is able to
seek further relief he must seek that relief though he may not
be in need of that further relief. In the present suit the plaintiff
while seeking relief of declaration would certainly have asked
for other reliefs like the reinstatement, arrears of salary and
consequential benefits. He was, however, satisfied with a relief
of declaration knowing that the Government would honour the
decree and would reinstate him. We will therefore assume that
the suit for mere declaration filed by the respondent-plaintiff
was maintainable, as the question of maintainability of the suit
is not in issue before us."
12.27. In Firm Rajasthan Udyog v. Hindustan
Engineering and Industries Limited [(2020) 6 SCC 660] the
O.P.(C)No.446 of 2021 & :-135-:
C.R.P.No.81 of 2021
Apex Court held that, in a civil case, the courts have to follow the
law in letter and spirit. Execution of an award can be only to the
extent what has been awarded/decreed and not beyond the same.
In the present case, the arbitrator in its award had only declared
the price of land and nothing more. Thus, the question of execution
of a sale deed of the land at the price so declared by the arbitrator
in its award, could not be directed. Paras.33, 34 and 37 of the
judgment read thus;
"33. The submission of the learned Senior Counsel for the
respondent that substantial justice has been done by the
Court by directing execution of the sale deed, is not worthy
of acceptance. In a Civil Case, the courts have to follow the
law in letter and spirit, which has not been done in the
present case, as in law the sale deed could have been
directed to be executed in execution of the Agreement
dated 01.02.1980 and not the Award, which was only a
declaration, fixing the price of land.
34. This Court, while considering the question of execution
of a decree which only declared the rights of the decree
holder and nothing more, has in the case of State of M.P.
v. Mangilal Sharma [(1998) 2 SCC 510) held as follows:
"6. A declaratory decree merely declares the right
of the decree-holder vis-à-vis the judgment-debtor
and does not in terms direct the judgment-debtor
to do or refrain from doing any particular act or
thing. Since in the present case decree does not
direct reinstatement or payment of arrears of
O.P.(C)No.446 of 2021 & :-136-:
C.R.P.No.81 of 2021
salary the executing court could not issue any
process for the purpose as that would be going
outside or beyond the decree. The respondent as a
decree-holder was free to seek his remedy for
arrears of salary in the suit for declaration. The
executing court has no jurisdiction to direct
payment of salary or grant any other consequential
relief which does not flow directly and necessarily
from the declaratory decree..........."
xxx xxx xxx
37. Similarly, in Gurdev Singh v. Narain Singh [(2007)
14 SCC 173] where the question of execution of a decree
prayed for was beyond what was decreed, this Court held
as follows: (SCC p.175, paras 7-8)
"7. We agree with the said contention. A bare
perusal of the decree in question would clearly
demonstrate that the appellant herein was
restrained by a permanent injunction from planting
any tree on Khasra No. 17/2 on the one side and
Khasra Nos. 218/1 and 17/1 on the other side. The
decree did not speak of removal of any tree which
had already been planted. The executing court, as
noticed hereinbefore, while interpreting the said
decree proceeded completely on a wrong premise
to hold that there should not be any tree within two
karams on either side of the common boundary of
the parties. Such an interpretation evidently is not
in consonance with the tenor of the decree. A
jurisdictional error, thus, has been committed
[Gurdev Singh v. Narain Singh, CR No. 4526 of
O.P.(C)No.446 of 2021 & :-137-:
C.R.P.No.81 of 2021
2004, order dated 23.2.2006 (P&H)] by the High
Court.
8. It is well settled that executing court cannot go
behind the decree. As the decree did not clothe the
decree-holder to pray for execution of the decree
by way of removal of the trees, the same could not
have been directed by the learned executing court
in the name of construing the spirit of the decree
under execution."
It is thus clear that execution of an award can be only to
the extent what has been awarded/decreed and not beyond
the same. In the present case, the arbitrator in its award
had only declared the price of land and nothing more. Thus,
the question of execution of a sale deed of the land at the
price so declared by the arbitrator in its award, could not be
directed."
12.28. In O.S.No.163 of 1977, in addition to the declaratory
relief that the Church in question shall be administered in all
matters of religious worship and administration of assets under the
Constitution of 1934, the plaintiffs have sought for injunction
restraining by injunction defendants 2 to 17 from receiving or
causing to receive defendants 18 to 22 in the plaint schedule
Church and properties or from expending any income of the 1 st
defendant Church for the benefit of or at the command or instance
of defendants 19 to 22 and restraining defendants 18 to 22 from
entering or interfering with the religious worship in or
O.P.(C)No.446 of 2021 & :-138-:
C.R.P.No.81 of 2021
administration of the 1st defendant Church, its cemetery, chapel,
institutions and assets and restraining defendants 3 and 5 to 17
from carrying on any administration of the assets of the 1 st
defendant Church, its chapel and institutions except under the 3 rd
plaintiff or whomsoever may succeed him in office and under the
Constitution. As evidenced by Ext.A1 decree, by the judgment of
this Court dated 11.02.2020 in R.F.A.No.427 of 2003, O.S.No.163
of 1977 was decreed to the extent of declaring that the 1st
defendant Church be administered in all matters of religious
worship and administration of assets as per the 1934 Constitution.
In the judgment dated 11.02.2020 this Court has taken note of the
stand taken by the defendants that, they admit that the 1934
Constitution is applicable to the 1st defendant Church.
12.29. As held by a Four-Judge Bench of the Apex Court in V.
Ramaswami Aiyengar [AIR 1951 SC 189] the duty of the
executing court is to give effect to the terms of the decree that has
already been passed and beyond which it could not go. In Mangilal
Sharma [(1998) 2 SCC 510], a decision cited before the
execution court, the Apex Court held that, a declaratory decree
merely declares the right of the decree-holder vis-à-vis the
judgment debtor and does not in terms direct the judgment debtor
O.P.(C)No.446 of 2021 & :-139-:
C.R.P.No.81 of 2021
to do or refrain from doing any particular act or thing.
12.30. In the instant case, Ext.A1 decree is declaratory in
nature, without any consequential mandatory or prohibitory
injunction, since by the judgment of this Court dated 11.02.2020 in
R.F.A.No.427 of 2003, O.S.No.163 of 1977 was decreed to the
extent of declaring that the 1st defendant Church be administered in
all matters of religious worship and administration of assets as per
the 1934 Constitution. In that view of the matter, conclusion is
irresistible that, while entertaining E.P.No.565 of 2020 the
execution court exercised jurisdiction not vested in it and acted
with material irregularity.
In the result, this Civil Revision Petition is allowed by setting
aside the common order dated 06.02.2021 in E.P.No.565 of 2020 in
O.S.No.163 of 1977 of the First Additional District Court, Ernakulam
and that execution petition is dismissed as not maintainable. No
order as to costs.
Sd/-
ANIL K. NARENDRAN
JUDGE
yd/bkn
O.P.(C)No.446 of 2021 & :-140-:
C.R.P.No.81 of 2021
APPENDIX OF OP(C)446/2021
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE APPROVED BYE-LAWS
AND THE APPROVAL ORDER BEARING NO.K.DIS-
.G4-22255/73 DATED 10.10.1973.
EXHIBIT P2 TRUE PHOTOCOPY OF THE JUDGEMENT DATED
05.08.2020 IN W.P(C)NO.15943 OF 2020.
EXHIBIT P3 TRUE PHOTOCOPY OF THE NOTICE BEARING
NO.B5/2124/2020 DATED 12.08.2020.
EXHIBIT P4 TRUE PHOTOCOPY OF THE INTERIM ORDER DATED
25.08.2020 IN W.P(C)NO.17731 OF 2020.
EXHIBIT P5 TRUE PHOTOCOPY OF ORDER DATED 1.10.2020
IN R.P.NO.694 OF 2020.
EXHIBIT P6 TRUE PHOTOCOPY OF THE JUDGMENT DATED
11.02.2020 IN R.F.A.NO.427 OF 2003.
EXHIBIT P7 TRUE PHOTOCOPY OF THE EXECUTION PETITION
NO.565 OF 2020 DATED 28.09.2020 IN
O.S.NO.163 OF 1977 IN R.F.A.NO.427 OF
2003.
EXHIBIT P8 TRUE PHOTOCOPY OF THE INTERIM ORDER
E.A.NO.709 OF 2020 DATED 01.10.2020.
EXHIBIT P9 TRUE PHOTOCOPY OF THE INTERIM ORDER
E.A.NO.709 OF 2020 DATED 23.10.2020.
EXHIBIT P10 TRUE PHOTOCOPY OF EXECUTION APPLICATION
NO.780 OF 2020 DATED 14.10.2020.
EXHIBIT P11 TRUE PHOTOCOPY OF THE OBJECTION FILED BY
THE RESPONDENTS IN EA.NO.780 OF 2020 DAT-
ED 27.10.2020.
EXHIBIT P12 TRUE PHOTOCOPY OF THE COMMON ORDER IN
E.P.NO.565 OF 2020 DATED 06.02.2020.
EXHIBIT P13 TRUE PHOTOCOPY OF THE LETTER DATED
26.4.2020 ISSUED BY THE PETITIONER AND
THE OTHER TRUSTEES TO THE VICAR.
EXHIBIT P13(A) TRUE PHOTOCOPY OF THE LETTER DATED
28.4.2020 ISSUED BY THE PETITIONER AND
THE OTHER TRUSTEES TO THE METROPOLITAN
RESPONDENTS 1 TO 3 EXHIBITS:
EXHIBIT R3(A) TRUE PHOTOCOPY OF THE ORDER OF THE DEO
APPROVING THE PETITIONER AS THE MANAGER
FOR A PERIOD OF 5 YEARS FROM 19/05/2015.
O.P.(C)No.446 of 2021 & :-141-:
C.R.P.No.81 of 2021
EXHIBIT R3(B) TRUE PHOTOCOPY OF THE AFFIDAVIT OF
SRI.M.T.ISSAC, THE 2ND JD/5TH RESPONDENT
IN THE OP(c) IN OS 17 OF 2016 DATED
04/03/2020.
EXHIBIT R3(C) TRUE PHOTOCOPY OF THE AFFIDAVIT FILED OF
THE PETITIONER IN RP IN WP NO.15943 OF
2020 DATED 10/09/2020.
EXHIBIT R3(D) TRUE PHOTOCOPY OF THE NOTICE ISSUED BY
THE DEO TO THE PETITIONER ALSO DATED
12/08/2020.
EXHIBIT R3(E) TRUE PHOTOCOPY OF THE COMPLAINT FILED BY
SRI. SAJU P PAULOSE AND ANOTHER BEFORE
THE POLICE CLAIMING AS TRUSTEES OF KANJI-
RAMATTOM ST. IGNATIUS CHURCH DATED
06/08/2020.
EXHIBIT R3(F) TRUE PHOTOCOPY OF THE OBJECTIONS FILED BY
THE JUDGMENT DEBTORS IN E.P.NO.565 OF
2020 IN OCTOBER 2020.
EXHIBIT R3(G) TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER IN E.A.NO.710 OF
2020 DATED 27.10.2020.
EXHIBIT R3(H) TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONER IN E.A.NO.780 OF
2020 DATED 27.10.2020.
EXHIBIT R3(I) TRUE PHOTOCOPY OF C.R.P.NO.81 OF 2021
FILED BY THE PETITIONER AND OTHERS DATED
10.02.2021.
EXHIBIT R3(J) PHOTOGRAPH OF MAR IGNATHIOSE YAKOBAYA
SURIYANI PALLY WITH THE PETITIONER,
BISHOP JOSEPH MAR GREGORIOSE ETC.
EXHIBIT R3(K) PHOTOGRAPH OF FRONT COVER AND 3RD PAGE OF
THE ANNUAL EDITION 2014 OF AGNIMAYAN
PUBLISHED BY THE FAMILY UNIT OF THE
YAKOBAYA SURIYANI PALLY KANJIRAMATTAM.
EXHIBIT R3(L) THE PHOTOCOPY OF PAGE 60 OF THE ANNUAL
EDITION 2014 OF AGNIMAYAN.
EXHIBIT R3(M) THE PHOTOCOPY OF PAGE 118 OF AGNIMAYAN
SHOWING THE PETITIONER AND FAMILY.
EXHIBIT R3(N) TRUE PHOTOCOPY OF THE PHOTO TAKEN FROM
PAGE 28 OF AGNIMAYAN SHOWING THE
PETITIONER AND MEMBERS OF THE SCHOOL
MANAGEMENT COMMITTEE ALONG WITH FR.JOSHY
MATHEW AND OTHERS.
EXHIBIT R3(O) PHOTOGRAPH OF JACOBITE BISHOP JOSEPH MAR
GREGORIOSE CELEBRATING HIS 60TH BIRTHDAY
FROM KANJIRAMATTOM YAKOBAYA CHURCH ON
O.P.(C)No.446 of 2021 & :-142-:
C.R.P.No.81 of 2021
08.11.2020.
EXHIBIT R3(P) PHOTOGRAPH OF JACOBITE BISHOP JOSEPH MAR
GREGORIOSE RECEIVING A PLAQUE WHILE
CELEBRATING HIS 60TH BIRTHDAY FROM
KANJIRAMATTOM YAKOBAYA CHURCH ON
08.11.2020.
O.P.(C)No.446 of 2021 & :-143-:
C.R.P.No.81 of 2021
APPENDIX OF C.R.P.NO.81/2021
RESPONDENTS 1 TO 3 ANNEXURES:
ANNEXURE R2(A) TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY
ST.IGNATIUS JACOBITE SYRIAN CHURCH DATED
24.01.2021.
ANNEXURE R2(B) TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY
ST.IGNATIUS JACOBITE SYRIAN CHURCH DATED
28.03.2021.
ANNEXURE R2(C) TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY
ST.IGNATIUS JACOBITE SYRIAN CHURCH DATED
13.01.2021.
