COUNTER IN EXECUTION PETITION BY METROPOLITANS OF SIMHASANA CHURCHES
- DEAR FRIENDS,
I had promised to publish the counter affidavit filed by the Metropolitans of Simhasana Churches as and when it is available. A certified copy was obtained from Court today morning. It is given belolw in full.
ADVOCATE CHEVALIER PHILIP.PJ
- BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM
E.P.No. 1 of 2009
O.S.No. 4 of 1979
Moran Mar Baselious Ougen & others ï¿½ Decree Holders
Most.Rdev.Paulose Mar Athanasios
and others ï¿½ Judgment
*Counter Affidavit filed by the respondent Nos. 34 Kuriakise mar Julias
Metropolitian No.35 Geevarghese Mar Dionysius and No. 37 ï¿½ Geevarghese Mar
Athanasius in the above case.*
I, Kuriakose Mar Julius Metropolitan, aged 75 years, S/o. Varkey,
now residing at St.George Simhasana Church, Perumbilly, Ernakulam District,
do hereby solemnly affirm and state as follows :
1. I am the 34th respondent in the above E.P. I know the facts and
circumstances of this case. I am swearing this affidavit on my behalf and
also on behalf of respondents Nos. 35 Geevarghese Mar Dionysius and No.37
Geevarghese Mar Athanasius, upon their instructions.
2. The above E.P. is not maintainable either in law or on facts. It is
barred by resjudicata. It is because almost for the very same purpose the
so-called decree holders have filed O.P.No. 22946/02 before this Honï¿½ble
High Court. The said O.P. was heard by this Court in detail and it was
dismissed as per judgment dated 28.1.2003. SLP filed before the Supreme
Court also was dismissed. It is also hit by Order 23 Rule 1 to 4.
3. These respondents hereby deny all the allegations and averments
contained in the above E.P. except those that are specifically admitted
hereunder. It is submitted that the plaintiff/so-called decree holders have
no authority or right to file the above Execution petition, because the
decree holders/plaintiffs 1 to 3 are not alive. No.4 to 8 are not parties
to the suit and they have not impleaded themselves as parties in the said
suit or Appeals. So, on the said ground alone the above E.P. is not
4. The above E.P. is not maintainable also for the reason that the
E.P. will not stand before the High Curt because the decree is to be executed,
if it is executable, by lowest court, which is the Church Special Court
(First Addl. District Court) situated at Ernakulam.
5. We are the Metropolitans appointed by the Patriarch of Antioch and
all the East. We are appointed as Metropolitans of Simhasana Churches
situated in Malankara. While the Sabha cases were filed, the question of
Simhasana Churches and its status were dealt with in O.S.No. 5/1979. O.S.No.
4/79 is dealing with the status and administration of Edavaka Churches and
administration of Malankara Sabha as a whole. Since we are the Metropolitans
of Simhasana churches we are not at all necessary parties in O.S.No. 4/79.
Hence we are unnecessary parties in the above said Execution case filed as
per the decree in O.S.No. 4/79.So the case is bad for mis-jointer of
6. However since we are also made parties as judgment debtors/respondents
in the above execution Petition we are also submitting our objections as
follows : The so called decree holders have filed a list of documents in
which item No.11 deals with provisional list of Malankara Churches where
1934 Constitution is not enforced at present except such churches where
Civil Suits proceedings are pending. Though all the Simhasana Churches in
India are not included in the said provisional list, we apprehend that the
other Simhasana Churches, which are not mentioned in this list will be
treated as the Edavaka Churches which are under the 1934 constitution. Not
only that the said list and the description about the list of churches is a
mysterious one because which are all the churches which are governed by 1934
Constitution etc. are not mentioned here. Further the names of Churches
including Simhasana Churches given in the said list are not involved in the
list of main Church case O.S.No. 4/79. Also it is to be noted that those
individual Churches were not made parties in the original suit in order to
have a binding nature over such church.
7. O.S.No. 5/79 deals with Simhasana churches and in that case, we are
the decree holders and we have won that case. So we are the decree holders
in the matters dealing in O.S.No. 5/79. So the description about these
respondents are not correct.
8. The averments and statements contained in paragraph No.9(2) of the
above Execution Petition are not fully correct and hence denied. It is true
that, in the said paragraph, the so-called decree holders have, mentioned
about the judgment and decree of O.S.No. 5/79 also. We are mainly concerned
with the judgment and decree of O.S.No. 5/79.As stated above O.S.No. 5/79
filed by them was dismissed and the plaintiffs therein have filed appeal
against the judgment in O.S.No. 5/79 as A.S.No. 354/80 before the Division
Bench of the High Court. The Honï¿½ble Division Bench of the High Court also
have dismissed the said Appeal and upheld the judgment and decree passed in
O.S.No. 5/79. The said judgment in point No.23 in paragraph No.119 deals
with the status of the Simhasana Churches. Accordingly the Division Bench of
he High Court has upheld the findings of the learned Single Bench in
O.S.No. 5/79. As per the judgment in O.S.No. 5/79 it is now well established
that the Simhasana Churches are to be governed by the Patriarch of Antioch
and all the East directly or through his delegates or nominees appointed by
him. Such Simhasana Churches are out side the purview of 1934 constitution
and the authorities of both factions in *Malankara Sabha have no
powers*both spiritual and temporal in the matters of such Simhasana
Paragraph No.119 to 122 of the said judgment have clearly established that
such Simhasana Churches are to be governed by the Patriarch directly or
through his delegates. Towards the last of paragraph No.122 in the said
judgment, it is clearly stated as follows :
ï¿½In this circumstances we hold that the Simhasana
Churches are not constitutent units of Malankara church and the Malankara
Sabha has no sort of jurisdiction over them. They are to be treated as
Churches directly under the Patriarch. That being so these
Churches are entitled to manage their affairs under the Patriarch and the
1st plaintiff has no authority to appoint
Vicar in the Simhasana Church involved in the suit and
the 2nd plaintiff appointed as vicar cannot have any right. The
dismissal of the suit O.S.No. 5/79 is correct.ï¿½
9. Against the judgment and decree of the Division Bench of the
Honï¿½ble High Court in A.S.No. 331/1980 the so-called decree
holders/plaintiffs filed SLP before the Honï¿½ble Supreme Court and
arguments,. the supreme Court also dismissed the SLP filed by them. The
said decision of the Supreme Court was reported in 1995 SC (2) page 2001.
Paragraph No. 147 of the said judgment deals with the position of the
Simhasana Churches, Knanaya Churches etc. The Honï¿½ble Supreme Court has
stated in the said judgment as :
ï¿½Before we conclude, it is necessary to deal with the position
of the above churches. The Division Bench of the High Court has
dealt with them under Points 23, 24, 25 & 26 formulated by it. So
far as Simhasana Churches, Evangelistic Association of the East and
St.Atnony Church Mangalore are concerned, the Division bench has
dismissed the suit vis. O.S.No. 5/79 & O.S.6/79 in so far as
to the above Churches agreeing with the findings and decree of the
learned Single Judge in that behalf, we see no grounds to depart
from the concurrent findings recorded by the learned Single Bench and
the Division Bench. We affirm their judgment and decree in that behalfï¿½
10. So from the above facts, it can be seen that the Simhasana Churches
are not in any way coming under the purview of 1934 Constitution or not a
part of Malankara Sabha and its administrative set up. *To be more
specific, both the Constitution of either factions of the Malankara Sabha
have no power over Simhasana Churches.*
11. Paragraph No. 9(3) of the Execution Petition have no relevancy or
applicability in respect of the Simhasana Churches or the Metropolitans
appointed to such Simhasana Churches. However neither the judgment and
decree of the Single Judge of the High Court, Division Bench of the High
Court and the judgment of the Honï¿½ble Supreme Court are not supporting the
claims and attitude of the so-called decree holders/plaintiffs.
12. Regarding the averment and statements contained in paragraph Nos.
9(4) to 9(12) it is submitted that they are not binding upon the Simhasana
13. Regarding the averments contained in paragraph No.9(13) it is
that the statements taken by the so-called decree holders/plaintiffs from
here and there of the judgments are not at all executable. The
was passed not in a representative suit. There was no order 1 Rule 8
publication. However so long as there is judgment and decree in O.S.No. 5/75
upholding the status of the simhasana Churches as finally found by the
14. The averments contained in paragraph No. 9(14) also is not concerned
with the Simhasana Churches or its metropolitans.
*A list of some of the Simhasana Churches and institutions under the
administration of Respondent Nos. 34 & 37 are given below.*
1. St.George Simhasana Chapel,
Agathiyoor P.O.Akkikkavu, Thrissur Dist.
2. St.Elias Simhasana Church,
3. St.Maryï¿½s Soonoro Simhasana Cathedral,
Elamkulam, Kadavanthara, Kochi-20.
4. Kizhakkambalam Dayro, Kizhakkambalam, Alwaye.
5. St.Maryï¿½s Syrian simhasana Church,
6. St.Thomas Simhasana Chapel,
Parayil, Kunnamkulam, Thrissur Dist.
7. St.James Syrian Orthodox Simhasana Church,
Prakkanam PO, Pathanamthitta Dist.
8. St.Maryï¿½s Simhasana Chapel,
9. St.George Simhasana Church,
10. Gathsemon Dayro, P.O.Piramadom,
Pampakkuda Ernakulam District.
11. St.George Simhasana Dayara,
Rajakumary, Idukki Dist.
12. St.Peterï¿½s Simhasana Church,
S.N.Park, Kanjani Road,
St.George Simhasana Church,
Thumpamon, Pathanamthitta Dist.
14. St.George Simhasana Church,
15. St.George Simhasand Church,
Cherukulam, Mannarghat, Palakkad.
*A list of Simhasana Churches and institutions under the Administration
of Respondent No. 35 are given below.*
1. St.George Syrian Orthoox Simhasana Church,
Zilla Court Ward., Alappuzha.
2. St.Maryï¿½s Syrian Simhasana Church,
Kallunkathra, Pulikuttissery P.O.,
3. Mor Yuhanon Mï¿½rahmono Dayro &
St.Ignatius Syrian Simhasana Church,
Kanjirappara P.O., Kottayam.
4. St.Ignatius Simhasand Cathedral.
5. St.Elias III Simhasand Chapel,
6. Mor Ignatius Dayro, Manjinikara,
Omallur, Mathoor PO, Pathanamthitta.
7. St.Maryï¿½s Simhasana Church,
Nedumkandam, PO, Idukki Dist.
8. St.Elias Syrian Orthodox Simhasana Church,
St.Elias Valley, Manjinikkara, Oonnukal P.O.,
9. St.Elias III Dayro & St.George Simhasana Church,
10. St.Maryï¿½s Simhasana Church, Pampady P.O.,
11. St.Peterï¿½s Syrian Simhasana Church,
Arampunna, Punalur, Kollam Dist.
12. St.Maryï¿½s Syrian Orthodox Simhasand Church,
Ranni, Pathanamthitta Dist.
13. St.George Syrian Orthodox Simhasana Church,
14. St.Maryï¿½s Bethlehem Patriarchal (Simhasana) Church,
15. St.maryï¿½s Syrian Orthodox Simhasana Church,
Vadakkupuram, Kumbazha, Pathanamthitta Dist.
There are also other Simhasana Churches and Institutions situated in India under the administration of other ecclesiastical dignitaries.
15. It is to be noted that, there was a suit O.S.No. 2/1983 in respect of Kunnamkulam Arthat Simhasana Church, which was dealt with by the First Addl. District Court, Ernakulam (Church Special Court) and was decreed in favour of the Patriarch of Antioch. The defendants in the said suit who are the petitioners herein have been injuncted from unauthorized entry in the Church etc. However A.S.No. 11/2003 filed by the Catholicose group is
pending in the High Court. So the authority of the Holy Throne and Patriarch of Antioch and all the East have been established in the said Church by the First Addl. District Court Ernakulam. There is no stay in the Appeal A.S.No. 11/2003 against the judgment and decree.
16. It is submitted that in reply to the last sentences contained in paragraph No. 9 (15), we, the Metropolitans appointed for Simhasana Churches are not ordained as per the 1934 Constitution. The Patriarch of Antioch and all the East has the powers to ordain appoint Metropolitans to administer the Simhasana Churches in India as his representatives and delegates. So the said statements in the said paragraph has no relevancy here.
17. The averments contained in paragraph No. 9 (16) to 9(20) are dealing with the constituent Churches of the Malankara Sabha and not concerned with the Simhasana Churches. But, so far, no court has found which are all the constituent churches of Malankara Sabha to be governed by 1934 Constitution.
18. Regarding the statement contained in paragraph No.9(21) it is
submitted that the decree and judgment in O.S.No. 5/79 is in favour of these Metropolitans of Simhasana Churches and so there is no violation of any decree or judgment provision. In fact some of the Metropolitan belonging to the plaintiffs group are violating the decree passed in O.S.No. 5/79. The Supreme Court has upheld the judgment and decree passed in O.S.No. 5/79 passed by the Single Bench and Division Bench of the High Court of Kerala.
*Supreme Court has clearly stated that 1934 Constitution has no authority over Simhasana Churches. So it will prevail.*
19. Regarding the statements contained in paragraph No.9(26) it is
submitted that the so-called decree holders/plaintiffs are to be directed not to interfere with the affairs of the Simhasana Churches. However the decree in O.S.No. 4/79 is in declaratory nature and it is not enforceable and it is not executable.
20. It is to be noted that the petitioners in the above E.P. have earlier filed O.P.No. 22946/02 for police protection before this Honï¿½ble High Court. While dismissing the said O.P. by the Honï¿½ble High Court it has been stated in paragraph No.18 of judgment as follows :
ï¿½So far as respondents Nos. 9 , 12 & 13 are concerned the counsel appearing for them contended that the writ petition was not maintainable against the Simhasana , Evangelist Churches. This position was accepted by learned counsel for petitionersï¿½.
Again in paragraph No. 53 of the said judgment the Honï¿½ble High Court has stated as follow :
ï¿½Learned counsel for respondent Nos. 9, 12 & 13 had contended
that no relief can be granted against them, as the said respondents were part of the Simhasana or Evangelist Churches. The learned counsel for the petitioners did not dispute this position. Thus, the
claim against these respondents cannot, in any case, be
21. It is also submitted that the Metropolitans of the simhasana Churches have no intention to violate any provisions of the decree passed in Honï¿½ble Supreme Court whereas the so-called decree holders/plaintiffs are trying to disobey the provisions of the decree passed in O.S.No. 5/79 & 4/79.
22. The reliefs sought for by the decree holders are not enforceable under law. Regarding prayer No.4, the same prayer was the main prayer in O.P.No. 22946/02 before the High Court and the same was dismissed. Hence it is barred by resjudicata. Against the judgment in the above said case the so-called decree holders/plaintiffs have approached the Supreme Court by filing
Appeal as per Civil Appeal Nos. 5460 to 5466/04. The Honï¿½ble Supreme Court has dismissed the said Appeals, and have clearly stated as follows :
ï¿½It would be an abuse of process to have a writ petition to approach the High Curt under Article 226 of the Constitution for the consideration seeking a writ of mandamus directing police authorities to protect this claimed position of a property without establishing his position in an appropriate civil Court.ï¿½
The present execution petition is to circumvent the
observation of the Supreme Court in the above Civil Appeals.
23. It is submitted that the Simhasana Churches Metropolitans in general
do not have administrative authority over parish churches unless and until
specifically authorized/granted by H.H. Patriarch, the Supreme head of the
Universal Syrian Orthodox Church .According to the practices of the
University Syrian Orthodox Church, Simhasana Church Metropolitans have the
general right to enter and conduct prayers and spiritual services in the
churches, when they are invited by such churches. So it is wrong to say
that the Metropolitans of the Simhasana Churches, are not entitled to enter
into the other Churches if they are invited by them. According to the
fundamental rights envisaged in the Constitution of India, a person can
enter and offer prayers in the Churches of the Universal Syrian Orthodox
24. It is also submitted that the so-called decree holders/plaintiffs
have stated the names of some Churches in a separate list as if they are
parish churches. But all the churches are not parish Churches whereas some
of them are only Simhasana Churches.
In the above said circumstances, it is humbly submitted that the
above E.P. is not maintainable, it has no valid substance
and hence the E.P. is liable to be dismissed with compensatory cost.
All the facts stated above are true and correct to the ebst of my
knowledge and information.
Dated this the 19th day of June, 2009.
Solemnly affirmed and signed before me by the deponent on this the 19th day
of June 2009 at my office at Ernakulam.
*Counsel for the Respondents*
* Nos. 34, 35 & 27 *