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James Paul Alexander Vs. James Arthur Edwards - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1953CriLJ1566
AppellantJames Paul Alexander
RespondentJames Arthur Edwards
Cases ReferredNurul Hasan v. Mt. Majidan
Excerpt:
- - the words of the sub-section which i have underlined (in) here clearly show that a decision that would enable the court to raise the attachment and hand over possession to one of the parties to the proceeding or to a stranger, as the case may be, is a decision of a competent court regarding the subject of the dispute......the decision of the civil court with respect to the kadamalakunnu church cannot be deemed to be a decision of a competent court regarding the title to or possession of the church in dispute here as contemplated by section 146(1). the first ground is really untenable and the learned counsel for the counter-petitioners did not seek to support the order on that ground. the order which this court passed in criminal revision petition 344 of 1124 is the proper order which the magistrate ought to have passed and it is meaningless to say that all further orders that may be found necessary in virtue of the provisions of section 146 should be passed by this-court alone.4. the second ground, however, stands on a different footing. once an order of attachment under section 146 is passed it can be.....
Judgment:
ORDER

Koshi, C.J.

1. The revision petition is directed against an order of the Stationary First Class Magistrate, Kuzhithurai refusing to withdraw the attachment effected under Section 146(1), Criminal P.C. over the Marthandom Church and to release the same to the possession of the present petitioners. They were counter-petitioners 2 to 9 in S.C. No. 15 of 1124 which was a proceeding relating to a dispute of possession over the Marthandom Church, The lower Court found that the petitioner to that proceeding was in possession of the disputed property on the relevant date and passed an order accordingly. This Court vacated that order in Criminal Revision Petition 344 of 1124 and an order under Section 146(1) keeping the property under attachment until a competent Court determined the rights of the parties thereto or the person entitled to possession thereof was substituted in its place. The counter-petitioners to the proceeding thereafter instituted Section No. 121 of 1950 before the Kuzhithurai District Munsiff's Court for a declaration as to title and possession.

2. The dispute arose on account of difference of opinion between the members of the congregation as to whether the church should join a scheme of union to form the Church of South India or should remain outside the fold of that Union. The petitioner in the-summary case belonged to the school of thought which opposed the Marthandom Church joining the Union while the counter-petitioners belonged to the opposite school, They would seem to constitute the committee of the Marthandom Church as a unit in the Church of South India. Similar disputes existed in other L.M.S. Churches also and the affairs of one of them namely, the church at Kadamalakunnu went to Court in O.S. No. 1 of 1124 of the Nagercoil District Court. That suit was decided by the District Court in favour of the protagonists of the Union and. on the strength of that decision the application giving rise to this revision petition was filed by the present petitioners for withdrawal of the attachment and delivery of possession of the disputed church to them. The learned Magistrate dismissed the application and hence this revision.

3. Two grounds are seen mentioned in the order rejecting the application. One is that as the order under Section 146(1) was passed by the High Court the Magistrate was incompetent to rescind or modify it. The other is. that the decision of the civil Court with respect to the Kadamalakunnu Church cannot be deemed to be a decision of a competent Court regarding the title to or possession of the church in dispute here as contemplated by Section 146(1). The first ground is really untenable and the Learned counsel for the counter-petitioners did not seek to support the order on that ground. The order which this Court passed in Criminal Revision Petition 344 of 1124 is the proper order which the Magistrate ought to have passed and it is meaningless to say that all further orders that may be found necessary in virtue of the provisions of Section 146 should be passed by this-Court alone.

4. The second ground, however, stands on a different footing. Once an order of attachment under Section 146 is passed it can be dissolved only under one or the other of two circumstances. The first is a decision of a competent Court as to the rights of the parties to the proceedings or the person entitled to the possession and the other satisfaction of the District Magistrate or the Magistrate who effected the attachment that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute. The latter condition is enacted by the proviso to Sub-section (1) to Section 146 and the other is embodied in Sub-section (1) itself. The second condition for lifting the attachment is not present in the case. There is no agreement between the parties as to whom possession should be delivered if attachment is to be lifted. Though the petitioners alleged in their petition that there was no longer any likelihood of a breach of the peace and contended for the acceptance of that view both before the lower Court and here, I am at one with the lower Court in thinking that the proviso has no application where there is no agreement between the parties to the proceedings as to whom the Magistrate may give possession pending decision by the Civil Court, The decision in-Nurul Hasan v. Mt. Majidan AIR 1944 All 210 (A), is a decision in point.

5. We have next to consider whether the decision of the Nagercoil District Court in O.S. No. 1 of 1124 can be deemed to be a decision of a competent Court determining the rights of the parties in regard to the subject of the dispute in this case or as to the person entitled to possession thereof. Sub-section (1) of Section 146 is in these terms:

If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the 'subject of dispute', he may attach it until a competent Court has determined the right of the parties 'thereto,' or the person entitled to possession 'thereof.

The words of the Sub-section which I have underlined (in) here clearly show that a decision that would enable the Court to raise the attachment and hand over possession to one of the parties to the proceeding or to a stranger, as the case may be, is a decision of a competent Court regarding the subject of the dispute. O.S. No. 1 of 1124 had nothing to do with the Marthandom Church. That suit was concerned with the Kadamalakunnu Church & as pointed out in the order under revision it does not appear to have been representative suit even as to bind the entire congregation of that church No doubt as the disputes in the two churches arose out of the same controversy reasons which influenced the learned Judge to decide the case in favour of the protagonists of the Union might perhaps prove useful to the decision of the case which the present petitioners have instituted before the Kuzhuthurai Munsiff's Court. From there it is a far cry to hold that that decision has once and for all settled the controversy so as to bind the several congregations of the former L.M. Section Church in Travancore. All L.M. Section Churches in Travancore cannot be presumed to have similar origin and history. The Magistrate is in my opinion therefore plainly right in his view that there was no decision before him by a competent Court in regard to the subject of the attachment in the case.

6. Learned Counsel for the petitioners cited several decisions before me during the course of his arguments, but I do not think it necessary to refer to any one of them here. The question is not whether the Magistrate could act before the final court gives its decision or what all tribunals would become competent Courts within the meaning of the section. It is only cases bearing on those questions that were cited before me and those decisions are, therefore, of no avail to the petitioners.

7. The petition fails and it is hence dismissed.


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