VICAR JERUSALEM MARTHOMA CHURCH Vs. MAMMAN THOMAS

JUDGEMENT

(1.) The revision is directed against the order passed by the execution court, 1st Additional Munsiff Court, Thiruvananthapuram, in E.P. No. 379 of 2009 in O.S. No. 486 of 2005 negativing the challenge raised by the revision Petitioner with another, the judgment-debtors, impeaching the executability of a decree for recovery of possession. Revision Petitioner is the 2nd judgment-debtor in the above execution petition. The decree executed by Respondents 1 to 4/the decree-holders, was one granting recovery of possession over a property comprising a building, declaring their title over the same. Executability of that decree was challenged by the judgment-debtors, the revision Petitioner and the 5th Respondent herein, contending that the building covered by the subject-matter fall within the ambit of the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965) and they are liable to be evicted only on satisfaction of any of the grounds under Section 11 of the above Act, and no eviction is allowable on the basis of the decree for recovery of possession passed by the civil court. An objection was also raised by them that since a School is being conducted in the building involved, the judgment-debtors are protected from eviction under Section 11(11) of the above Act. Yet another ground was canvassed to resist the execution contending that Section 6 of the Kerala Education Act prohibits alienation of the property of an educational institution including transfer of possession and, thus, the decree is a nullity and inexecutable. The execution court, repelling all the aforesaid objections raised by the judgment-debtors, ordered for delivery of the property to the decree-holders under the impugned order.

(2.) Notice given, the Respondents 1 to 4/the decree-holders have entered appearance. A counter-affidavit was filed by the 1st Respondent traversing the various grounds raised by the revision Petitioners/judgment-debtors to impeach the order of the execution court.

(3.) I heard the counsel on both sides. Before adverting to the submissions made by the counsel on both sides over the propriety, correctness and legality of the order of the execution court, the undisputed facts in the case deserve to be taken note of. The decree schedule property, having an extent of 13.5 cents, situated in Kawdiar, Village of Thiruvananthapurm Corporation comprise of a building, and, in which, an aided school is being conducted by the judgment-debtors, obtaining a lease over the property from the predecessor of the decree-holders. That registered lease deed executed in the year 1948 was exhibited as A-5 on the trial side. The demand for surrender and vacant possession of the leasehold not heeded to by the lessees/judgment-debtors, and resisting it even by disputing the title of the lessors, the suit was instituted for declaration of title and recovery of possession. Though the judgment-debtors contended that even before the execution of A-5 lease deed, they had been conducting the School and the deed was executed only for getting recognition for the School from the State Government, it has been concurrently held by all the courts that the rights and liabilities of the parties are governed by A-5 lease deed. After the dismissal of the second appeal filed by the Defendants/judgment-debtors, they pursued the challenges filing a Special Leave Petition before the Apex Court, and that was also turned down negativing all their challenges against the decree granted in favour of the Plaintiffs/decree-holders. That decree for recovery of possession when proceeded with in execution, was resisted with the contentions as aforesaid. The objection of the judgment-debtors to the executability of the decree having been turned down by the execution court, one among the judgment-debtors/the 2nd judgment-debtor has filed this revision.