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COUNTER IN EXECUTION PETITION BY METROPOLITANS OF SIMHASANA CHURCHES

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  • ADV. PHILIP JOHN
    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
    Message 1 of 1 , Dec 23, 2009
    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.

    Regards,

    ADVOCATE CHEVALIER PHILIP.PJ
    MEMBERSHIP ID-1837

    ==============================================================

    - BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM


    E.P.No. 1 of 2009

    IN

    O.S.No. 4 of 1979





    Moran Mar Baselious Ougen & others � Decree Holders



    -V-

    Most.Rdev.Paulose Mar Athanasios

    and others � Judgment
    debtors **

    * *

    *Counter Affidavit filed by the respondent Nos. 34 Kuriakise mar Julias
    Metropolitian No.35 Geevarghese Mar Dionysius and No. 37 � 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 Hon�ble
    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
    maintainable.



    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
    necessary parties.



    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 Hon�ble 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
    Churches.
    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 :



    �In 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.�



    9. Against the judgment and decree of the Division Bench of the
    Hon�ble High Court in A.S.No. 331/1980 the so-called decree
    holders/plaintiffs filed SLP before the Hon�ble Supreme Court and
    after elaborate
    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 Hon�ble Supreme Court has
    stated in the said judgment as :



    �Before 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
    they related
    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 behalf�



    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 Hon�ble 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
    Churches.



    13. Regarding the averments contained in paragraph No.9(13) it is
    submitted
    that the statements taken by the so-called decree holders/plaintiffs from
    here and there of the judgments are not at all executable. The
    so-called decree
    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
    Supreme Court.



    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,

    Vepery, Chennai.



    3. St.Mary�s Soonoro Simhasana Cathedral,

    Elamkulam, Kadavanthara, Kochi-20.



    4. Kizhakkambalam Dayro, Kizhakkambalam, Alwaye.

    5. St.Mary�s Syrian simhasana Church,

    Arthat, Kunnamkulam.



    6. St.Thomas Simhasana Chapel,

    Parayil, Kunnamkulam, Thrissur Dist.



    7. St.James Syrian Orthodox Simhasana Church,

    Prakkanam PO, Pathanamthitta Dist.



    8. St.Mary�s Simhasana Chapel,

    Parannoor, P.O.Choondal.



    9. St.George Simhasana Church,

    P.O.Perumpilly, Mulanthuruthy.



    10. Gathsemon Dayro, P.O.Piramadom,

    Pampakkuda Ernakulam District.



    11. St.George Simhasana Dayara,

    Rajakumary, Idukki Dist.



    12. St.Peter�s Simhasana Church,

    S.N.Park, Kanjani Road,

    P.O.Poothole, Thrissur-4.
    St.George Simhasana Church,

    Thumpamon, Pathanamthitta Dist.



    14. St.George Simhasana Church,

    Varinjavila.





    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.Mary�s Syrian Simhasana Church,

    Kallunkathra, Pulikuttissery P.O.,

    Kottayam.



    3. Mor Yuhanon M�rahmono Dayro &

    St.Ignatius Syrian Simhasana Church,

    Kanjirappara P.O., Kottayam.



    4. St.Ignatius Simhasand Cathedral.

    Puthenangadi, Kottayam.



    5. St.Elias III Simhasand Chapel,

    Karapuzha Kottayam.



    6. Mor Ignatius Dayro, Manjinikara,

    Omallur, Mathoor PO, Pathanamthitta.



    7. St.Mary�s Simhasana Church,

    Nedumkandam, PO, Idukki Dist.



    8. St.Elias Syrian Orthodox Simhasana Church,

    St.Elias Valley, Manjinikkara, Oonnukal P.O.,

    Pathanamthitta Dist.



    9. St.Elias III Dayro & St.George Simhasana Church,

    Pampady, PO.Kottayam.



    10. St.Mary�s Simhasana Church, Pampady P.O.,

    Kottayam.


    11. St.Peter�s Syrian Simhasana Church,

    Arampunna, Punalur, Kollam Dist.

    12. St.Mary�s Syrian Orthodox Simhasand Church,

    Ranni, Pathanamthitta Dist.

    13. St.George Syrian Orthodox Simhasana Church,

    P.O.,Thiruvalla, Pathanamthitta,

    14. St.Mary�s Bethlehem Patriarchal (Simhasana) Church,

    P.O.hrikkothamangalam, Kottayam.

    15. St.mary�s 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 Hon�ble High Court. While dismissing the said O.P. by the Hon�ble High Court it has been stated in paragraph No.18 of judgment as follows :

    �So 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 petitioners�.

    Again in paragraph No. 53 of the said judgment the Hon�ble High Court has stated as follow :

    �Learned 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
    sustained�.

    21. It is also submitted that the Metropolitans of the simhasana Churches have no intention to violate any provisions of the decree passed in Hon�ble 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 Hon�ble Supreme Court has dismissed the said Appeals, and have clearly stated as follows :

    �It 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.�

    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
    Church.

    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.


    Deponent

    Solemnly affirmed and signed before me by the deponent on this the 19th day
    of June 2009 at my office at Ernakulam.

    *
    P.K.Behanan*

    *Counsel for the Respondents*

    * Nos. 34, 35 & 27 *

    * *


    philipjohn
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