Saithalavi vs Ayisha
2021 Latest Caselaw 4061 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                   &

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                        Mat.Appeal.No.7 OF 2015

        AGAINST THE JUDGMENT AND DECREE IN O.P.NO.715/2013
           DATED 30-10-2014 OF FAMILY COURT, OTTAPALAM


APPELLANT/S:

                SAITHALAVI, AGED 57 YEARS,
                S/O.KARIMBATHOTTIL HASSAINAR,
                KOTTEKKATTUPARAMBIL VEEDU, POMBRA DESOM,
                ELAMPULASSERI AMSOM, OTTAPALAM TALUK.

                BY ADV. SRI.R.SREEHARI


RESPONDENT/S:

                AYISHA, D/O.KUNHAPPU,
                KURIYATTUTHODI, KODALLOOR AMSOM DESOM,
                OTTAPALAM TALUK, MELEPATTAMBI POST,
                PATTAMBI - 679 306.

                R1 BY ADV. SRI.A.HAROON RASHEED
                R1 BY ADV. SRI.P.JAYARAM


THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.No.7/2015                2



                               JUDGMENT

Dated this the 4th day of February 2021

A.Muhamed Mustaque, J.

This appeal was filed challenging a decree

granting mandatory injunction. The parties to the

original petition before the Family Court are husband

and wife. The wife filed a suit for mandatory injunction. That was granted. In this appeal, husband

challenges the decree granted.

2. The brief facts involved in this case are as

follows:

Admittedly, the petition schedule property

belonged to the husband. Wife filed O.S.No.442/1990

before the Munsiff's Court, Ottapalam for maintenance.

That was decreed, creating a charge over the property

belonged to the husband. In execution, the wife

purchased the property in an auction. Thereafter, she

obtained delivery on 27.08.1994 with police

assistance. The marital status at the time of taking

delivery in execution was intact. The wife pleaded in

the present petition she allowed husband to reside

along with her based on compromise in a maintenance

case instituted after taking delivery. The wife

revoked permission on causing damage to the property

by husband and also when he attempted to change basic

tax into his name.

3. In the suit and in this appeal the principle

question is on maintainability of suit for mandatory

injunction. The learned counsel for the appellant

submitted that the appellant retained possession in

spite of the delivery effected and the delivery

effected in execution is only a paper delivery and

there was no actual delivery. The learned counsel

further submits that a suit for recovery of possession

alone would lie before the Family Court. The learned

counsel for the appellant further submitted that the

allegation in the petition that the appellant was

occupying the premises on a licence granted by the

wife was not supported by any evidence and therefore,

the mandatory injunction could not have been granted

by the Family Court.

4. The short point that arises for consideration

is whether a petition for a mandatory injunction is

available to the respondent to evict the appellant

from the petition schedule property or not.

5. There was a dispute to the fact that the

appellant was evicted through the process of execution

court in the year 1994. The appellant's main

contention that, he was not evicted through the

process of law. The question germane for

consideration, in this case, arises in view of the

contention put forward by the appellant that he

retained the possession, unaffected by the delivery

effected through the execution court as aforenoted..

6. The records produced before the Family Court

as Exts.A1 to A4 clearly establishes that the

appellant was evicted through the process of the court

and delivery report was submitted by the Amin before

the Execution Court. If the appellant had a case that

he was not evicted through the process of law, that

cannot be raised in subsequent proceedings initiated

by the decree holder/respondent. Essentially, this is

a question related to the execution of a decree. Under

Section 47 of the Civil Procedure Code, 1908, all

questions arising between the parties to the suit in

which the decree was passed, or their representatives,

and relating to the execution, discharge or

satisfaction of the decree shall be determined by the

court executing the decree and not by a separate suit.

Therefore, the petitioner cannot raise a plea that

could have been raised under Section 47 in a separate

suit to resist the claim of decree holder asserting

the possessory right over such property. The question

whether a suit for recovery of possession or the suit

for mandatory injunction would lie depends upon the

nature of interest now claimed by the appellant by way

of possession. Certainly on the teeth of delivery

effected through the execution court in the earlier

decree, the appellant can no longer contend that he is

having any interest over the property as the

possession has been delivered to the decree holder.

7. On the other hand, the case put forward by

the respondent that the appellant was permitted to

occupy the premises after the delivery effected, is

no more probable because the marital relationship

remained intact. The respondent has chosen to

institute a petition for mandatory injunction, when

she has chosen to revoke the permission granted. The

appellant does not have any subsisting interest over

the property. In such circumstances, the suit for

mandatory injunction would lie.

8. The moment, the licence is revoked, the

appellant is under a legal obligation to vacate the

premises to the respondent. In such a scenario, we

are of the view that the suit instituted by the

respondent for mandatory injunction is perfectly

legal and sustainable. In the light of the

discussion, we are of the view that there is no

infirmity with the decree granted by the Family

Court. Accordingly, the appeal fails and it is

dismissed. No costs. All pending interlocutory

applications are closed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

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