IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7800 OF 2014

S. Bhaskaran …Appellant(s)

Versus

Sebastian (Dead) By Lrs. & Ors. …Respondent(s)

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

1. The  instant  appeal  arises  out  of  the  order  of  the  High

Court of Judicature at Madras dated 10.12.2007 in Civil Revision

Petition No. 1007 of 2007, setting aside the order of the City

Civil Court, Chennai dated 31.01.2007 in E.A. No. 5750/2003 in

Execution Petition No. 1910/1992 in O.S. No. 8664/1988.  

2. The  brief  facts  from  which  this  appeal  arises  are  as

follows:  

The  suit  temple  properties  were  originally  administered  by

three  brothers–  Sadhasivamurthy,  Balasundaram,  and

Sundararajan (‘original  owners’).  Vide settlement  deed dated

19.09.1947, these original owners endowed the property to the

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NON-REPORTABLE

temple. The deed also included a provision that the eldest son

of  the  deceased  trustee  would  become  his  successor.  The

genealogy of the family of the original owners is as follows:

Sadhasivamurthy Balasundaram       Sundararajan

(issueless)  K.S.Jaganathan

Sabapathy Umapathy Ram Gnanambal

S. Bhaskaran (Appellant)

3. From  1987-88,  three  suits  relating  to  the  temple

properties  were  filed.  Among  these,  O.S.  No.  8664/1988  is

relevant to the instant appeal. This suit was filed on behalf of

the temple by one K.S. Jaganathan and S. Bhaskaran (Appellant

herein)  in  their  capacity  as  trustees,  seeking  permanent

injunction  against  Gnanambal  and  her  husband,  who  were

tenants in the suit properties (Respondents 1-7 herein) at that

time. One Umapathymurthy (represented by Respondents 8-14

herein) was impleaded in this suit as a defendant. In his written

statement,  he  claimed  that  he  was  the  eldest  son  of

Sadhasivamurthy and that he had been dispossessed from the

trusteeship  of  the  temple  by  his  younger  brother,  K.S.

Sabapathy.  

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4. By a common judgment dated 09.09.1991, the Trial Court

disposed of all the three suits. With respect to the relevant suit

(O.S.  No.  8664/1988),  it  gave  a  finding  that  the  Appellant

herein and his uncle, K.S. Jaganathan were the trustees of the

temple. To arrive at this finding, the Court relied on documents

indicating that the Appellant’s father, K.S. Sabapathy was the

eldest son of Sadhasivamurthy and the heir to the suit land in

terms of the settlement deed dated 19.09.1947. These included

the license issued by the Police Commissioner in 1983 showing

K.S.  Sabapathy as the heir  (Ex.  B21),  electricity  card of  K.S.

Sabapathy  (Ex.  B22),  wedding  invitation  of  Sadhasivamurthy

(Ex.  B24),  license  issued  by  police  department  for  temple

celebration  (Ex.  B25),  and  the  legal  heir  certificate  dated

31.08.1987 issued to  Sadhasivamurthy  by  the  Tahsildar  (Ex.

B26). In holding that the Appellant was a trustee and passing a

decree  in  his  favour,  the  Court  rejected  the  claim  of

Umapathymurthy  that  he  was  the  eldest  son  of

Sadhasivamurthy, and consequently the trustee of the temple.  

5. In  first  appeal,  the  Appellate  Court  confirmed  the

judgment  and  decree  of  the  Trial  Court  passed  in

O.S.No.8664/1988. No further appeal was preferred. It is crucial

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to  note  that  Umapathymurthy  was  an  appellant  in  the  first

appeal and had contested it.

6. The decree holders filed Execution Petition No. 1910/1992,

for  executing  the  decree  obtained  by  them  in  O.S.

No.8664/1988.  In  this  petition,  the  judgment  debtors

(Respondents herein) filed an execution application (E.A.  No.

5750/2003) under Section 47 of the Code of Civil  Procedure,

1908  (‘CPC’)  against  the  Appellant  and  his  uncle,  seeking

dismissal of the execution petition on the basis that the original

decree  was  vitiated  by  fraud.  They  alleged  that  the  heir

certificate of Sadhasivamurthy furnished by the Appellant (Ex.

B26  in  the  Trial  Court  record)  was  falsely  prepared  and

suppressed the name of Umapathymurthy as the eldest son of

Sadhasivamurthy.  

7. While  examining  this  application,  the  executing  court

observed that the judgment debtors had not objected to the

heir certificate when it was adduced before the Trial Court.  In

any  case,  the  Trial  Court  had  not  adjudicated  the  issue  of

trusteeship solely on the basis of the heir certificate, and other

documents had been considered as well. Thus, by order dated

31.01.2007, the executing court dismissed E.A. No. 5750/2003

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filed under Section 47 of the CPC as non-maintainable on the

ground that the judgment of the Trial Court had been confirmed

by  the  First  Appellate  Court  after  considering  all  relevant

evidence, and had therefore become final.  

8. When a revision petition was filed against the above order,

the High Court allowed E.A. No. 5750/2003 vide the impugned

judgment.  Relying  on  sale  deeds  dated  11.08.1948  and

22.06.1950 showing Umapathymurthy  as  the eldest  son  and

K.S. Sabapathy as the second minor son of Sadhasivamurthy,

the  High Court  concluded that  Umapathymurthy qualified as

the trustee of the temple in view of the settlement deed dated

19.09.1947. Thus, K.S. Sabapathy could not have become the

trustee of the temple. In view of this finding, the High Court

went on to observe that the decree passed in the original suit

was a nullity and could not be enforced.  

9. Having perused the records and the findings of the Trial

Court, we find ourselves unable to agree with the decision of

the High Court in the impugned judgment. It is well-settled that

an executing court cannot travel beyond the order or decree

under execution (see  Rameshwar Dass Gupta  v. State of

U.P. and Another, (1996) 5 SCC 728).  

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In the present case, the Trial Court had already considered

the evidence on record and given a finding that the Appellant

and  his  uncle  were  the  trustees  of  the  temple.  Notably,

Umapathymurthy was a party to this suit and had contested it

by filing a written statement, claiming to be the eldest son of

Sadhasivamurthy. However, at that time, he did not put forth

any objections to the heir certificate of Sadhasivamurthy, which

was considered by the Trial Court while arriving at its finding.

This judgment was confirmed by the First Appellate Court and

no further appeal was preferred by the Respondents against it.

In light of this, the findings of the Trial Court have become final,

and Umapathymurthy  as  well  as  the  other  Respondents  are

bound by them.  

By allowing them to re-open the question of trusteeship by

way of an application in an execution petition, the High Court

has gone beyond the decree to be executed and exceeded its

revisional jurisdiction under Section 115 of the CPC. Since the

findings of the Trial Court had attained finality, the decision of

the  executing  court  dated  31.01.2007  by  which  E.A.  No.

5750/2003 was dismissed,  should  have been affirmed.  Thus,

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the  impugned  judgment  is  not  only  illegal,  but  also  without

jurisdiction.  

10. For  the  aforementioned  reasons,  we  set  aside  the

impugned order dated 10.12.2007 in Civil Revision Petition No.

1007 of 2007 passed by the High Court. The order of the City

Civil Court, Chennai dated 31.01.2007 in E.A. No. 5750/2003 is

restored. The appeal is allowed accordingly.  

………..….…………………………..J. (N.V. RAMANA)

….…………………………………….J. (MOHAN M. SHANTANAGOUDAR)

……….……………………………….J. (AJAY RASTOGI)

NEW DELHI; SEPTEMBER 13, 2019

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