Sumesh.K vs Sreema.S
2021 Latest Caselaw 5032 Ker

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OP (FC).No.95 OF 2021

              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 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

                        OP (FC).No.95 OF 2021

    AGAINST THE ORDER/JUDGMENT IN EP 36/2017 IN OP 228/2013 OF
                      FAMILY COURT, PALAKKAD


PETITIONER/S:

       1        SUMESH.K.
                AGED 44 YEARS
                S/O. KUMARAN, KANNIYAD, OOTTARA, VADAVANNUR,
                CHITTUR TALUK, PALAKKAD DISTRICT

       2        KUMARAN,
                AGED 69 YEARS
                S/O. KOMBAN, KANNIYAD, OOTTARA, VADAVANNUR, CHITTUR
                TALUK, PALAKKAD DISTRICT

       3        PUSHPAVALLY
                AGED 59 YEARS
                W/O. KUMARAN, KANNIYAD, OOTTARA, VADAVANNUR,
                CHITTUR TALUK, PALAKKAD DISTRICT.

                BY ADVS.
                SRI.JACOB SEBASTIAN
                SRI.K.V.WINSTON
                SMT.ANU JACOB

RESPONDENT/S:

                SREEMA.S
                AGED 34 YEARS
                D/O. SREEDHARAN, ARAYAKULAM KUTTIYAMPAK, THENARI,
                ELAPPULLY, PALAKKAD DISTRICT, PIN 678 622


     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (FC).No.95 OF 2021




        A.MUHAMED MUSTAQUE & C.S.DIAS, JJ.
            ======================
                  OP(FC) No.95 of 2021
            ======================
        Dated this the 11th day of February, 2021.

                            JUDGMENT

C.S.DIAS. J.

This original petition is filed to set aside the

orders in IA No.1113/2017 in OP No. 228/2013 (Ext

P5) and in E.P No.36/2017 in OP No.228/2013 (Ext P6)

of the Family Court, Palakkad. The petitioners are the

judgment debtors in EP No.36/2017 and the

respondent is the decree holder in the execution

petition.

2. The concise case of the petitioners is that the

Family Court by Ext P1 judgment and decree allowed

OP No.228/2013, directing the petitioners to return

49.7345 sovereigns of gold ornaments or its market

value of Rs.11,23,220/-. The petitioners have

challenged Ext P1 by filing Mat Appeal No.621/2017

before this Court. This Court by Ext P2 order stayed

OP (FC).No.95 OF 2021

the operation of Ext P1 judgment, on condition that

the petitioners furnish security to the satisfaction of

the Family Court. Two items of immovable properties

belonging to the second petitioner were attached by

the Family Court before judgment as per Ext P3.

Although the petitioners by Ext P4 application, offered

the same property as security in compliance with Ext

P2, the Family Court by Ext P5 order dismissed the

application. Now the Execution Court is proceeding

with the execution proceedings dehors Ext P2 order

passed by this Court. In order to satisfy the decree,

only a portion of the attached property need be sold.

Without considering this material aspect, the Family

Court has ordered the whole property to be sold in

auction as per Ext P6. Hence, the original petition.

3. Heard the learned counsel appearing for the

petitioners and the learned counsel appearing for the

respondent.

4. Ext P1 judgment passed by the Family Court

has been challenged before this Court in Mat Appeal

OP (FC).No.95 OF 2021

No.621/2017. This Court, by Ext P2 order dated

19.6.2017, stayed the operation of the judgment on

condition that the petitioners furnish security for the

decree amount to the satisfaction of the Family Court

within four weeks. Even though it is contended that

the petitioners offered the same property under

attachment before judgment as security, the Family

Court by Ext P5 order dated 23.10.2017 rejected Ext

P4 application. It is more than three years since Ext

P5 order has been passed. Now the petitioners are

before this Court assailing Ext P5 order mentioned

supra and Ext P6 orders fixing the upset price of the

property sought to be sold in execution.

5. When the original petition came up for

consideration, we decided to hear the appeal itself.

6. By a separate judgment dated 11.2.2021, we

allowed the Mat. Appeal, in part, by directing the

petitioners to return 30 sovereigns of gold ornaments

or its value at the rate of Rs.6,81,000/- within a period

of three months.

OP (FC).No.95 OF 2021

7. On an overall appreciation of the facts of the

case, particularly considering the fact that the

petitioners have not challenged Ext P5 order passed

by the Family Court immediately after it was passed,

in compliance with Ext P2 order passed by this Court,

we are of the view that as the petitioners have

belatedly approached this Court, they are not entitled

to any relief. Now with reference to the contention

that only a portion of the attached property need be

sold to satisfy the decree, also does not hold good

because the Family Court has taking into

consideration all the relevant factual aspects and held

that the value shown in the draft sale proclamation

has to be accepted. We do not find any illegality or

error in the said factual assessment made by the

Family Court warranting interference by this Court

under Article 227 of the Constitution of India.

8. In light of the above findings, we uphold

Exts P5 and P6 orders. Nevertheless, we direct the

Family Court to keep the execution proceedings in

OP (FC).No.95 OF 2021

abeyance for a period of three months, so as to give

the petitioners an opportunity to pay off the decree

amount as directed by us in Mat.Appeal 621/2017,

within three months. In case the decree debt is not

paid within the stipulated time period, the Family

Court shall resurrect EP No.36/2017 from the present

stage and bring it to its conclusion, as expeditiously as

possible, in accordance with law.

With the above observations, the original petition

is disposed of .

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

                                        C.S.DIAS

  SKS/15.2.2021                          JUDGE

OP (FC).No.95 OF 2021



                          APPENDIX
  PETITIONER'S/S EXHIBITS:

  EXHIBIT P1            A TRUE COPY OF THE JUDGMENT DATED

MARCH 30, 2017 IN ORIGINAL PETITION NUMBER 228/2013 OF THE FAMILY COURT, PALAKKAD

EXHIBIT P2 A TRUE COPY OF THE ORDER DATED JUNE 19, 2017 IN I.A NO. 2077/2017 IN M.A.T APPEAL NO. 621/2017 OF THIS HONOURABLE COURT.

EXHIBIT P3 A TRUE COPY OF THE ORDER OF ATTACHMENT ALONG WITH THE SCHEDULE OF PROPERTY

EXHIBIT P4 A TRUE COPY OF I.A NO. 1113/2017 IN ORIGINAL PETITION NUMBER 228/2013 OF THE FAMILY COURT, PALAKKAD

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED OCTOBER 23,2017 IN IA NO 1113/2017 ON ORIGINAL PETITION NUMBER 228/2013 OF THE FAMILY COURT, PALAKKAD

EXHIBIT P6 A TRUE COPY OF THE ORDER DATED JANUARY 18,2021 IN E.P NO. 36/2017 OF ORIGINAL PETITION NUMBER 228/2013 OF THE FAMILY COURT, PALAKKAD