FRANCIS Vs. ST THOMAS CHURCH

JUDGEMENT

(1.) The judgment debtor in E.P. 351/99 in O. S. 768/96 on the file of the Munsiff's Court, Paravur has filed this revision petition challenging the order in the E.P. dated 27.1.2001 ordering delivery of possession of the plaint schedule property, overruling the contention raised by him that the decree is not executable.

(2.) In the above suit filed for eviction of the revision petitioner from the plaint schedule property owned by the respondent Church, a compromise decree for eviction was passed in favour of the respondent plaintiff, directing the revision petitioner to surrender vacant possession of the plaint schedule property on or before 31.12.1998, failing which allowing the plaintiff to recover possession by instituting execution proceedings. As the petitioner did not surrender possession as directed in the decree, the respondent filed the E.P. The revision petitioner entered appearance before the Court and contended that the decree is not executable and therefore, the E.P. is not maintainable. He contended that the notification issued by the Government of Kerala whereby the minority institutions were exempted from the operation of the Kerala Buildings (Lease & Rent Control) Act basing which the above suit was filed, is struck down by this Court as ultra vires of the Constitution, by judgment dated 22.11.1999. Therefore, the decree has become void and the execution petition is not maintainable. According to him, the decree holder can seek eviction by instituting separate suit or proceedings under due process of law. The lower court overruled the contentions raised by the judgment debtor and directed delivery of possession of the property.

(3.) It is not in dispute that the above suit is filed by the respondent against the petitioner for eviction on the basis of the exemption granted by the Government of Kerala from the operation of the Kerala Buildings (Lease & Rent Control) Act to the buildings owned by the minorities institutions. That notification is struck down by a Division Bench of this Court in the decision in Krishna Pillai v. Infant Jesus Church ( 2000 (1) KLT 197 ) holding that the notification is unconstitutional and ultra vires of S.25 of the Kerala Act 2/1965.