IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :25-10-2010 CORAM THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRP.NPD.No.2261 of 2009 and M.P.No.1 of 2009 Arulmigu Mariamman Temple, Veerappan Chatram Rep. by its defacto trustee and worshipper R.Mathi 18/21, Devarayan kadu Kaveri road, Veerampan Chatram Erode-638 004 .. Revision petitioner Vs. 1. M. Thangavel 2. Karuppayammal 3. Pavayammal 4. Arukkaniammal 5. Thangavel @ Thangamani .. Respondents Prayer :-This revision has been filed under Article 227 of the Constitution of India against the order dated 27.07.2009 passed in C.F.R.No.6669 of 2009 in E.P.No.81 of 2005 in O.S.No.455 of 1992 on the file of the Principal District Munsif Court at Erode. For Petitioner : Mr. S. Parthasarathy Senior Counsel for Mr. R. Bharath Kumar For Respondents : Mr.V. Manohar for R1 No appearance for R2 to 5 ORDER
This revision has been filed against the rejection order passed in E.A.No. of 2009 in E.P.No.81 of 2005 in O.S.No.455 of 1992 by the lower court in an application sought to be filed under section 47 C.P.C by the petitioner.
2. Heard Mr. S. Parthasarathy, learned Senior counsel for the petitioner and Mr. V. Manoharan, learned counsel for the 1st respondent. No appearance for the respondents 2 to 5 despite their names are printed in the cause list.
3. Learned Senior counsel would submit in his argument that the rejection of the application u/s. 47 C.P.C filed by the third party/ petitioner is not in accordance with law. He would further submit that the law considered and laid down by the Hon’ble Apex court reported in AIR 1992 SC 1812 has not been construed correctly but the claim of the petitioner was rejected at the threshold and the lower court should have ordered numbering of the application to hear the objection regarding the entitlement, in the proceeding of the decree and to pass suitable orders. He would also submit that the lower court had not given any opportunity to the petitioner to state her submission regarding the disentitlement of the respondent from representing the decree holder temple to pursue the decree. He would further submit in his argument that the claim of the 1st respondent as hereditary trustee was negatived by the Deputy Commissioner of HR&CE Department through its order made in O.A.No.7/1993 dated 11.07.1994 and the same was upheld by the Commissioner of HR&CE in the appeal in AP.No.26/1994 dated 11.12.1996 and a statutory suit was filed by the respondent in O.S.No.575 of 1997 on the file of the Principal Sub Court, Erode, challenging the order of Commissioner HR&CE and it was also dismissed through its judgment and decree dated 25.06.2001 and against which the respondent has preferred a statutory appeal in A.S.No.780/2001 on the file of this court and the respondent was found not entitled to represent the plaintiff’s temple in all the proceedings where as the petitioner is the defacto trustee and worshipper and her claim towards the trusteeship should have been considered in the claim petition. He would further submit in his argument that the interest of the petitioner over the trusteeship is in peril and therefore, he cannot proceed with the decree and therefore, the rejection order should have been interfered and set aside. He would further submit in his argument that the lower court was not right in holding that the application filed before the lower court was not attracted u/s. 47 C.P.C, cannot be correct and there will not be any harm for the lower court to number the application and to hear the objection. He would also submit that the appeal pending before this court in A.S.No.780/2001 against the dismissal of the statutory suit may be heard together with this revision for passing suitable orders. He would therefore, request the court to interfere and set aside the order passed by the lower court and to allow the revision.
4. Learned counsel for the 1st respondent would submit in his argument that the lower court was perfectly alright in rejecting the application at the filing stage itself since it has been filed to prolong the execution proceedings filed against the respondents 2 to 5. He would further submit that the execution has been launched on behalf of the temple and the ultimate beneficiary would be the temple and after handing over the delivery of possession in favour of the temple and if the 1st respondent has been found not entitled to hold the hereditary trusteeship, then the properties would be delivered to the temple only and would not be retained by the 1st respondent. He would further submit in his argument that the petitioner styling herself as “defacto trustee” is itself not maintainable and she cannot claim any right in the said application and ask for any order against the 1st respondent that he should not pursue the execution petition which is in a negative character. Moreover, he would submit that it cannot be permitted to decide the right of the petitioner or the disentitlement of the 1st respondent. Since such question has to be decided within the purview of the provisions of T.N.H.R.& C.E. Act. He would also submit that the lower court was correct in rejecting the application. He would further submit that the lower court had correctly considered the judgment of Hon’ble Apex court reported in AIR 1997 SC 1812 and had rejected the claim of the petitioner. He would further submit that as per the judgment of Andhra Pradesh High court reported in 1995 (2) CCC 408 in between Mohd.Osman Ali & Ors vs. Mohd. Khasim&Ors for the principle that Section 47 C.P.C cannot be applied where the dispute arises between parties and his own representatives or between two persons both of them represent the same party. He would therefore, submit that the proceedings u/s.63 (b) of HR&CE Act is pending adjudication before this court in A.S.No.780 of 2001 and it has passed an order of injunction in C.M.P.No.12988 of 2001 in favour of the 1st respondent in respect of the administration of the temple and its properties. Therefore, he is entitled to represent the temple which has to be finally decided by this court in the appeal A.S.No.780 of 2001. Therefore, he would request the court that there is no bonafide on the part of the petitioner in filing the application u/s. 47 CPC, which is detrimental to the temple and it is not beneficial to temple and therefore, he would submit that nothing survives for interference in the order passed by the lower court and therefore, the revision may be dismissed.
5. I have given anxious thoughts to the arguments advanced by both sides. The petitioner is a third party claiming to be a defacto trustee of the decree holder temple and she sought to file an application u/s. 47 C.P.C with the following prayers:
“a. Take up the petitioner’s claim and hold that the first respondent is not liable to represent Arulmigu Mariamman Temple, Veerappan Chathiram, Erode as its hereditary Trustee.
b. Take up the petitioner’s claim and hold that the first respondent is not entitled to continue the execution application in a capacity as the hereditary trustee until the same if finally decided by the Hon’ble High Court in A.S.No.780 of 2001.
c. Take up the petitioner’s claim and hold that the present execution application filed by the first respondent is not in the interest of the temple.
d. Take up the petitioner’s claim and hold that the temple itself does not own any immovable property.”
The said prayers have been sought for by the petitioner not to claim herself any right as the hereditary trustee of the said temple but with an idea that the 1st respondent as decree holder is not entitled to proceed the E.P as hereditary trustee since his claim as hereditary trustee was rejected by various forums and the appeal is pending before this court in A.S.No.780 of 2001 and he should not be permitted to act as a hereditary trustee till the said appeal is disposed. The lower court had discussed the said point and found that the petitioner has asked for negative prayers and she herself has not claimed any right in the trusteeship and therefore, Section 47 C.P.C is not applicable. It had also discussed and found that the 1st respondent had initiated the proceedings against the respondents 2 to 5 and obtained a decree and he was shown to be a decree holder and therefore the executing court cannot go beyond the decree. Moreover, it had also found that the representatives of the same person cannot agitate their rights in Section 47 C.P.C as per the judgment of Andhra Pradesh High court reported in 1995 (2) CCC 408.
6. On a careful consideration of the prayers put forth by the petitioner, there is no claim for the petitioner in respect of the trusteeship. Even if it is considered to be true, the petitioner sought for a prayer that temple is not the owner of the properties. The dispute is as to whether the 1st respondent can represent the temple. It is an admitted fact that the proceedings were pending before Deputy Commissioner HR&CE Department and an appeal was preferred and order was passed by the Commissioner HR&CE thereafter, the said order of commissioner was questioned in a statutory suit before Sub Court, Erode in O.S.No.575 of 1997 and an injunction order was passed in I.A. No.1255 of 1997 by the said court in favour of the 1st respondent. Now it is shown to the court that the appeal against the judgment and decree of the Sub court in O.S.No.575 of 1997 was preferred before this court in A.S.No.780/2001 and an application in C.M.P.No.12988 of 2001 was filed and an interim injunction was granted by this court and it is being continued till today. The said order of injunction was also produced in the additional typed set pages ‘5 to 14’. It would show that it was finally made absolute. Therefore, we could see that the 1st respondent is permitted to continue the management of the temple as well as the properties belonging to the temple till the disposal of A.S.No.780 of 2001. Admittedly the statutory appeal in A.S.No.780 of 2001 is pending before this court.
7. In the said circumstances, how the 1st respondent could be removed from the trusteeship and he be prohibited from pursuing the decree before execution court has not been answered by the petitioner. It is further contended that the revision has to be taken alongwith the appeal and has to be disposed of simultaneously for passing proper proper order in this revision. However, no steps have been taken by the petitioner for transferring this revision to the court where the appeal A.S.No.780 of 2001 is pending.
8. As rightly submitted by the learned counsel for the 1st respondent that the authorities designated under the provisions of HR&CE Act are competent to decide the right to hereditary trusteeship. Admitted by the proceedings are pending before this court. As temporary injunction is also in favour of the 1st respondent the decree sought to be executed is a lawfully obtained decree during the injunction order was in force. The petitioner as a third party without any right, over the property, in her arms, cannot maintain an application under the guise of the rights conferred under Section 47 C.P.C.
9. In the aforesaid circumstances, the reasons given by the lower court in refusing to admit the application filed by the petitioner u/s. 47 C.P.C is quite all right and is in accordance with law. Therefore, the request of the learned Senior counsel that the petitioner should be given an opportunity and an opportunity to get the application numbered be given to the 1st respondent and other respondents to file counter and the application may be disposed on merits cannot be accepted simply for the reason that the petitioner cannot ask for any negative prayer without claiming any right for herself. Therefore, I find no infirmity in the order passed by the lower court and there is no reason for interfering with the orders passed by the lower court. Therefore, the revision fails and is liable to be dismissed.
10. For the foregoing discussion, the revision preferred by the petitioner is dismissed with costs. Connected miscellaneous petition is closed.
kpr
To
The Principal District Munsif
Erode