R G NALLAKUTTALAM PILLAI Vs. VAITHINATHA BHATTAR

JUDGEMENT

(1.) This is an appeal from the order of the Subordinate Judge of Ramnad at Madura dated 26 January 1933 in appeal No. 47 of 1933 from the order of the District Munsif of Srivilliputtur dated 1 August 1932 dismissing the application in execution of the decree in O.S. No. 172 of 1920. In that suit the plaintiff obtained a decree declaring his right to certain hereditary offices, four in number, of which what is known as Periathanam was one, in the temple of Sri Yaidyanathaswami at Madavar-vilagam. There was also a permanent injunction granted by the decree against the defendants who are the trustees representing the temple restraining them from interfering with the performance of services by him in respect of these offices. The decree-holder alleged that his rights as Periathanakkar were interfered with in the matter of the management of certain properties which are described as Samudayam properties and that this interference with his rights by the present trustee of the temple who is bound by the decree amounts to a breach of the injunction and that necessary action should be taken under Order 21, Rule 32, Civil P.C. This application was opposed on the preliminary ground that the right of management of the Samudayam properties claimed by the decree- holder had not been alleged in the suit and had not been adjudicated upon in the suit, and that, therefore the decree-holder's remedy did not lie in execution but only by a separate suit, and that too in a suit in which all the other sharers in the Samudayam properties have to be impleaded. This contention found favour with the District Munsif who dismissed the petition summarily on the ground that the question that arose was not one which could be decided by the executing Court, and that it can only be decided in a separate suit. The Subordinate Judge on appeal held to the contrary and he was of opinion that the question was one which could be decided by the executing Court, and only by the executing Court, and not in a separate suit. He accordingly set aside the District Munsif's order and remanded the petition to him for further enquiry and disposal.

(2.) The only point for determination in this appeal is whether, the question that was raised in the petition for execution was one which the executing Court had power to decide. It is contended that this could not be a question for the executing Court to decide because there are other sharers or persons interested in the Samudayam properties, and they were not parties to the suit or the decree, and therefore the executing Court could not deal with it. The short answer to this is that no relief is asked for in execution as against any one who is not a party to the decree. Apparently the plaintiff decree-holder does not anticipate any interference with his rights at the hands of the other co-sharers; whatever the case may be, he has alleged that there has been interference with his rights as Periathanakkar by the (present trustee of the temple. The decree which is binding on the temple declaros that he has rights as Peria- thanakkar and gives an injunction restraining the temple trustees from interfering with the exercise of those rights. The decree does not say specifically what the rights are, but that does not mean that he has no rights at all; otherwise, the decree would be a mere piece of waste paper, and the injunction would be mere thunder. This is exactly a case in which the executing Court and the executing Court alone can deal with disputes which have arisen subsequent to the decree. It is possible that there was no real dispute at the time when the suit was tried as to what the duties or the rights in question were.

(3.) In any case no issues seem to have been framed for the purpose of deciding what exactly the rights were. That does not mean that if disputes should arise about the same matter after the decree is passed the executing Court cannot decide after enquiry whether any particular act alleged does not amount to an interference with the rights declared in the decree. I am therefore of opinion that the view of the learned Subordinate Judge is right and that the question is one which should have been decided after enquiry by the executing Court. The appeal therefore is dismissed with costs.