Introduction:

According to Oxford Thesaurus of English, one meaning ascribable to the word “primeval” is untouched by humans. Such questions eminently arise in this execution petition. It is so said because despite ardent efforts put in by bar and bench, no precedent directly touching upon the questions posed herein could be unearthed. They are all about the nuances of executing a decree passed in a civil appeal by the Supreme Court. The concept vividly expressed in Section 37 of the Code of Civil Procedure, 1908 (in short, “Code”), viz., “court which passed the decree” leaves no room for any doubt. Section 38 of the Code says that a decree may be executed either by the court which passed it or by the court to which it is sent for execution. In this backdrop and also in the light of relevant constitutional principles, scope of the provisions in Sections 109 and 112 of the Code, coupled with those in Order XLV of the Code, arise for scrutiny.

2. Needless to say, the Code is a pre-constitution law. By virtue of Article 372 of the Constitution of India, notwithstanding the repeal by the Constitution of the enactments referred to in Article 395, but subject to the other provisions in the Constitution, all the laws in force in the territory of India immediately before the commencement of the Constitution would continue in force until altered or repealed or amended by a competent legislature or other competent authority. As per the provisions in Adaptation of Laws Order, 1950, dated 26.01.1950, the Code has been adapted and it even now operates with full vigour. Insofar as Sections 109 and 112 and various Rules in Order XLV of the Code are concerned, the major change effected is substitution of the words “King in Council” with “Supreme Court”. Of course, in Sub-rule (1) of Rule 15 of Order XLV of the Code, the expression “any order” was substituted by “any decree or order” and for “His Majesty”, the substitution is “the Supreme Court”. Applicability of these provisions vis-a-vis the relevant constitutional provisions shall be examined later.

Quintessential Questions for determination:

(I) How far the provisions in Sections 109 and 112 and Order XLV differ from the basic rules contained in Part II of the Code, especially in relation to Sections 36 to 38 of the Code?

(II) Can it be said that Order XLV forms a separate Code within the Code?

(III) What is the impact of the articles in Chapter IV, falling in Part V of the Constitution of India, on a decree of this nature?

Brief facts:

3. This execution petition is filed by invoking Order XXI Rules 10 and 11 read with Order XLV Rule 15 of the Code. Petitioners herein are not parties to O.S. No. 41 of 2003 on the file of the I Additional District Court, Ernakulam (Special Court for Malankara Church Cases), from which the decree sought to be executed had arisen. It is seen from the judgment of the trial court that the suit was instituted by invoking Section 92 of the Code. The disputes revolved around a Malankara Church, which is undoubtedly a public religious trust. From the records it is seen that the trial court decreed the suit in the following manner:

“The suit is partly decreed without costs. 2nd defendant is directed to convene general body of the 1st defendant- Church in order to elect managing committee members including secretary and trustees in accordance with 1934 constitution. The defendants 4 and 5 can continue till new persons are elected. It is declared that only 2nd defendant or any other vicar or priest appointed in accordance with 1934 constitution of Malankara church has right to conduct holy mass and other religious functions in the 1st defendant church. The other defendants are restrained by permanent prohibitory injunction from bringing any other vicar or priest to 1st defendant - church for conducting holy mass or other religious functions. The other prayers are disallowed.”

4. An appeal was taken from the judgment and decree of the trial court to this Court as R.F.A. N