KURUVILLA Vs. AVIRA

JUDGEMENT

(1.) The plaintiff in O.S. 31 of 1118 on the file of the District Court of Parur appeal against the order of the District Judge dated 11.5.1124 refusing their application to remove the two respondents to this appeal (who were defendants 1 and 3 in the court below) from their position as receivers and to appoint a stranger receiver instead. That suit had been preceded by O.S. 13 of 1111 of the same court which, as the present, related to the Vadakara Jacobite Syrian Church, Parur, and was removal of the old Kaikkars and entrustment of management to new ones. The contesting old kaikkars compromised with the opponents and the litigation accordingly terminated by the end of the year 1117. The management of the church was, from the start of the litigation to its finish, done under the orders of court through its receiver. At the close of the litigation it was entrusted to the parties agreed upon in the compromise. Within a few days of the presentation of the compromise before court, it is stated that 365 parishners objected to its acceptance by the court but the objection was of no avail.

(2.) The present suit was filed in Vrischigam 1118 impeaching the aforesaid compromise and claiming other and independent reliefs. The parties who secured management under the compromise were for various reasons assailed as being unfit therefor. The suit was accompanied by an application for appointment of a receiver pending its disposal. The parties in management, namely, the respondents took notice of the application and opposed it. On 17.4.1118 the court appointed them receivers. The statement in the order that the appointment is as a temporary measure has led to a controversy as regards its construction and it subsists. Construing that expression to mean merely an ad interim appointment, the plaintiffs, on 18.5.1121 applied for final orders. The application was rejected as the order characterised as interim was held to be final. Plaintiff's attempt at securing redress by resort to the erstwhile High Court of Travancore in C.M.A. 108/1121 did not enable them to achieve their object, the High Court having dismissed the C.M.A. observing that the appellants have to move by a substantive application for the relief that they sought, viz., removal of the receivers. In other words, the construction put on the order dated 17.4.1118 by the court below in favour of its finality was confirmed in appeal. The order of the High Court was passed towards the end of the year 1121. Early in 1123 the respondents who had been by that time functioning for about 5 years thought that the record of their work would justify a prayer for remuneration at a rate to be fixed by the court though they accepted office agreeing not to claim it. On hearing the plaintiff's opposition and to a certain extent giving effect to it, the Court, in Makaram 1123, ordered that the receivers be paid 6 per cent of the collections in the future. No remuneration was awarded for work done in the past though that was found to be very satisfactory and much to the advantage of the institution. On 19.10.1123, C.M.P. 2585/1123 the order whereon has led to this C.M.A. was presented by the plaintiffs praying that their application dated 12.4.1118 may be taken up and orders passed removing the respondents from their position as receivers and that an impartial stranger may be appointed receiver. The application was signed by the 3rd plaintiff and was accompanied by his affidavit. The 3rd plaintiff furnished a supplementary affidavit on 22.11.1123 containing details of charges. The receivers opposed the application. An objection petition was presented by their counsel and one of the receivers filed a counter affidavit on 26.11.1123 repudiating in detail every one of the complaints and allegations made against them. Mention must be made of the fact that specific objection is taken by the plaintiffs to the claim made by the receivers for remuneration which was allowed by the court against the tenor of their express antecedent undertaking. Objection is also seen taken to the various items of expenditure entered in the accounts submitted by the receivers.

(3.) The court below passed the order appealed against on 11.3.1124 in the following terms: