PONNUSWAMY PADAYACHI Vs. NALLAMUTHU PADAYACHI

JUDGEMENT

(1.) THIS criminal revision case involves a question of interest, upon the degree to which a Magistrate can proceed into the basis of a certificate by a Deputy commissioner in the Prescribed form under Section 101 of Madras Act 22 of 1959, setting forth the finding that the properly in question belonged to the concerned religious institution, and directing delivery thereof to a petitioning party, by the party in possession. Incidentally, the entire question involves a clarification of certain basic principles of law, which do appear to have been directly adverse to, in the few precedents that have been cited at the Bar.

(2.) ADMITTEDLY, Section 101 is a kind go summary procedure, whereby a person appointed as trustee, or to discharge functions of that character, can summarily obtain possession of the alleged properties of the religious institution, from an obstructer, on the basis of a certificate issued by the Commissioner. The implementation of the certificate is also provides for in the section, and the concerned trustee may apply to any Presidency Magistrate or Magistrate of the first class of requisite jurisdiction, vitally to execute the certificate by directing delivery. Upon the nature of this proceeding, there have been certain decision of this court, and it may be convenient to refer to them immediately before going further.

(3.) IN Shanmugham Archagar v. Munuswami, 1959-1 Mad LJ 144. Ramaswami J. had to deal with Section 87 (3) of the earlier Act XIX of 1951, which is by concession of parallel provision of the prior enactment. After referring to several precedents, the learned Judge observed that the Magistrate giving effect to the certificate was in the position of an executing court, and could not go behind the order or certificate issued by the Commissioner. He has no power to entertain any objection to the validity, legality or correctness of the order. The only remedy of the aggrieved party is to file a suit, as specifically provided for by means of the last proviso to Section 87. In that particular case, the learned Judge held that a plea to the effect that the temple was a private temple could not be raised or entertained before the magistrate, after the Commissioner had issued the certificate.