Kerala High Court
Manimekhala vs Sooraj S.Kumar on 23 February, 2021
O.P.(FC).No.12/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942
OP (FC).No.12 OF 2021
AGAINST THE ORDER/JUDGMENT IN OP 379/2020 OF FAMILY COURT,
KOTTARAKKARA
PETITIONER/S:
1 MANIMEKHALA,
AGED 56 YEARS,
M/O.LATE UTHRA V., WIFE OF VIJAYASENAN, RESIDING AT
VISHU (VELLASSERIL) AERAM, THADICADU P.O.,
KOLLAM 691 306.
2 VIJAYSENAN,
AGED 61 YEARS,
S/O.LATE G.VIDYADHARAN, RESIDING AT VISHU
(VELLASSERIL) AERAM, THADICADU P.O.,
ANCHAL 691 306.
3 MINOR BABY OF UTHRA ALIAS KICHU,
1 1/2 YEARS, REP.BY GRANDMOTHER SMT.MANIMEKHALA,
AGED 56 YEARS, M/O.LATE UTHRA V., RESIDING AT VISHU
(VELLASSERIL) AERAM, THADICADU P.O.,
KOLLAM 691 306.
BY ADVS.
SRI.K.SASIKUMAR
SRI.S.ARAVIND
SRI.P.S.RAGHUKUMAR
SRI.K.JANARDHANA SHENOY
RESPONDENT/S:
1 SOORAJ S.KUMAR,
AGED 27 YEARS,
S/O.K.SURENDRAPANICKER, RESIDING AT SREESURYA,
PARAKKODU P.O., PATHANAMTHITTA 691 554 ( NOW UNDER
JUDICIAL CUSTODY)
O.P.(FC).No.12/2021 2
2 K.SURENDRAPANICKER,
AGED 59 YEARS,
S/O.KARUNAKARA PANICKER, RESIDING AT SREESURYA,
PARAKKODU P.O., PATHANAMTHITTA 691 554.
3 S.RENUKA,
AGED 50 YEARS,
W/O.K.SURENDRAPANICKER, RESIDING AT SREESURYA,
PARAKKODU P.O., PATHANAMTHITTA 691 554.
4 SOORYA,
AGED 22 YEARS,
D/O.K.SURENDRAPANICKER, RESIDING AT SREESURYA,
PARAKKODU P.O., PATHANAMTHITTA 691 554.
R2-4 BY ADV. SRI.MANU RAMACHANDRAN
R2-4 BY ADV. SRI.T.S.SARATH
R2-4 BY ADV. SRI.M.KIRANLAL
R2-4 BY ADV. SRI.R.RAJESH (VARKALA)
R2-4 BY ADV. SHRI.SAMEER M NAIR
THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(FC).No.12/2021 3
JUDGMENT
Dated this the 23rd day of February, 2021
A.Muhamed Mustaque, J.
This original petition was filed seeking
following reliefs:
"i. To consider Ext.P2 I.A No.1/2020 in
O.P.No.379/2020 of the Family Court,
Kottarakkara preferred under Order 38 Rule 5
and Section 151 of the Code of Civil
Procedure and pass an order of conditional
attachment before judgment of the property
owned by the 2nd respondent which is more
specifically described in the schedule
attached to the same;
ii) To direct the Family Court, Kottarakkara
to proceed further with the order of
conditional attachment in Annexure A2 I.A."
2. The petitioners are the petitioners in
O.P.No.379/2020 before the Family Court,
Kottarakkara. That original petition was filed on
29.12.2020. Along with the original petition the
petitioners filed I.A.No.1/2020 seeking conditional
attachment of properties owned by the 2nd
respondent, before judgment. Since conditional
attachment order was not passed as contemplated
under Order 38 Rule 5, the petitioner rushed to
this Court with this original petition on
04.01.2021. Taking note of the nature of relief
sought, this Court on 07.01.2021 passed the
following order:
"Heard the learned counsel for the
petitioners. Respondents are directed to
furnish security for Rs.51,70,326/- (fifty
one lakhs seventy thousand three hundred and
twenty six only) or to show cause why the
property scheduled cannot be attached.
In the meantime, issue conditional
attachment and notice. Notice to 1st
respondent shall be served through the
Superintendent of Sub-jail, Kollam."
3. Pursuant to the above order, conditional
attachment was effected through the Munsiff Court,
Adoor.
4. The respondents 2 to 4 filed counter
affidavit. 1st respondent is in jail. Respondents
have raised objection with regard to the
continuation of the conditional attachment. We are
of the view that the Family Court itself has to
decide the matter. The conditional attachment order
passed by this Court, taking note of the peculiar
circumstances of the case, whether it can be made
absolute or to be withdrawn can be decided by the
Family Court, after adverting to the objection of
respondents 2 to 4. It is made clear that
conditional attachment order of this Court need be
construed by the Family Court to follow the same
order while taking decision in the matter. The
Family Court can decide the matter after adverting
to all the circumstances. The counter affidavit
filed by the respondents 2 to 4 shall be taken as
show cause as against the conditional order of
attachment imposed by this Court. The Family Court
is directed to pass appropriate order after
adverting to the rival contentions of the parties
without any delay, at any rate within a period of
one month.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
JUDGE
DG
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PETITION ALONG WITH
THE DOCUMENTS FILED IN OP NO.379/2020
BEFORE THE FAMILY COURT, KOTTARAKARA
EXHIBIT P2 A TRUE COPY OF THE I.A.1/2020 IN OP
NO.379/2020 BEFORE THE FAMILY COURT,
KOTTARAKKARA
