Kerala High Court
Anil Kumar vs Soumya G. Nair on 25 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
O.P.(FC) NO.388 OF 2021
E.P.NO.20/2015 IN O.P.NO.40/2013 ON THE FILE OF THE FAMILY COURT,
PATHANAMTHITTA.
PETITIONER:
ANIL KUMAR,
AGED 51 YEARS, S/O. GOPALAKRISHNA KURUP,
KOCHUVEETIL,
KALLARAKADAVU, PATHANAMTHITTA VILLAGE,
KOZHENCHERRY TALUK,
PATHANAMTHITTA DISTRICT, PIN-689 645.
BY ADVS.
P.HARIDAS
BIJU HARIHARAN
P.C.SHIJIN
RISHIKESH HARIDAS
RESPONDENT:
SOUMYA G. NAIR,
AGED 34 YEARS,
KOCHUVEETIL,
KALLARAKADAVU, PATHANAMTHITTA VILLAGE,
KOZHENCHERRY TALUK,
PATHANAMTHITTA DISTRICT, PIN-689 645.
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(FC) NO.388 OF 2021
-2-
JUDGMENT
A. MUHAMED MUSTAQUE, J.
The petitioner is the judgment debtor. In execution of a decree,
an arrest warrant has been issued. The prayer in the execution
petition itself was first to proceed against the property, then
alternatively by arrest of judgment debtor. It is open to execute the
decree by simultaneous mode of arrest and sale of property.
However, in the execution petition, the initial prayer itself was for a
sale of immovable property and only in the event of recovery
becomes impossible by arrest of the petitioner. As seen from the
impugned proceedings without completing the proceedings for sale,
the arrest warrant has been issued. Further, no enquiry has been
conducted in regard to the means of the petitioner. The execution
court was bound to issue a show-cause notice before ordering arrest
of the judgment debtor. The proceedings as now followed, is
improper. We, therefore, set aside the impugned proceedings. The
Family Court, where the execution is pending, is directed to proceed
for sale of the property under attachment. The judgment debtor
appears to have filed Ext.P2 application for sale of portion of the
O.P.(FC) NO.388 OF 2021
property and that application should be considered by the Family
Court before proceeding further. Entire proceedings for execution of
sale of immovable property shall be completed within a period of four
months. If the recovery becomes impossible through sale of the
property, the Family Court can consider the execution by arrest of
the judgment debtor on being satisfied that the petitioner has
sufficient means to discharge the obligation as mentioned above.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
O.P.(FC) NO.388 OF 2021
APPENDIX
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE EXECUTION PETITION E.P NO.
20/2015 IN O.P.NO.40/2013 BEFORE FAMILY
COURT, PATHANAMTHITTA DATED 21-04-2015.
EXHIBIT P2 TRUE COPY OF THE PETITION FILED BY THE
PETITIONER AS E.A NO. 73/2016 IN E.P NO.
20/2015 IN O.P NO.40/2013 DATED 10-11-2016
EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT TO E.A NO. 73/2016 IN E.P NO.
20/2015 IN O.P NO. 40/2013 BEFORE FAMILY
COURT, PATHANAMTHITTA.
EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT FILED BY
PROSPECTIVE PURCHASER MR.ABRAHAM IN E.P NO.
20/2015 IN O.P NO.40/2013 BEFORE FAMILY
COURT, PATHANAMTHITTA DATED 20-06-2017.
EXHIBIT P5 TRUE COPY OF THE B DIARY ISSUED ON 19-11-
2018 IN E.A NO. 73/2016 IN E.P NO. 20/2015
IN O.P NO. 40/2013 OF FAMILY COURT,
PATHANAMTHITTA.
EXHIBIT P6 TRUE COPY OF THE ORDER WARRANT OF THE
FAMILY COURT, PATHANAMTHITTA DATED 24-12-
2020.
EXHIBIT P7 TRUE COPY OF THE ORDER WARRANT OF THE
FAMILY COURT, PATHANAMTHITTA IN E.P NO
20/2015 IN O.P NO.40/2013 DATED 19-01-2021.
