Kerala High Court
Sivadas.P.D vs Sindhu.M.R on 12 January, 2021
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 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942
OP (FC).No.21 OF 2021
AGAINST THE ORDER/JUDGMENT IN OP 683/2018 OF FAMILY COURT,
PALA
PETITIONER:
SIVADAS.P.D, S/O.DAMODARAN, PUNNATHANATHU HOUSE,
PLASHNAL P.O., THALAPPULAM VILLAGE, KOTTAYAM
DISTRICT, REP.BY HIS POWER OF ATTORNEY HOLDER
PRAVEENKUMAR S/O.THANKACHAN, AGED 46, RESIDING AT
KDAYAKUNNEL, EDAPPADY P.O., BHARANANGANAM
VILLAGE,MEENACHIL THALUK, KOTTAYAM DISTRICT
BY ADVS.
SRI.C.P.SAJI
SMT.P.DEEPA MOHAN
RESPONDENTS:
1 SINDHU.M.R, D/O.RAMANKUTTY, AGED 48, MANJANKAL
HOUSE, KIDANGOOR P.O., KIDANGOOR VILLAGE, KOTTAYAM
DISTRICT
2 CHANDRAN, S/O.RAMANKUTTY, AGED 60, MANJANKAL
HOUSE, KIDANGOOR P.O., KIDANGOOR VILLAGE, KOTTAYAM
DISTRICT
3 LAUCY M.R., D/O.RAMANKUTTY, AGED 48, MANJANKAL
HOUSE, KIDANGOOR P.O., KIDANGOOR VILLAGE, KOTTAYAM
DISTRICT
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No.21 OF 2021
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JUDGMENT
Dated this the 12th day of January 2021
A.Muhamed Mustaque, J
The petitioner herein is the respondent in O.P. No.
683/2018 on the file of the Family Court, Pala. The above
original petition was filed by one Omana, his divorced wife.
This original petition was filed claiming arrears of maintenance.
Pending the said proceedings, Omana died. Her sister, Sindhu
filed an application to implead herself to prosecute the above
original petition. She also sought to implead other legal heirs of
Omana as additional respondents. That was allowed.
Challenging this, this original petition was filed invoking
Article 227 of the Constitution of India.
2. According to the learned counsel for the petitioner,
the original petition would stand abated, consequent upon the
OP (FC).No.21 OF 2021
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death of Omana. As the maintenance claim is a personal claim,
such claim will not survive on the death of such claimant. The
petitioner, after adverting to Order XXII Rule 1 of Code of the
Civil Procedure, 1908, would argue that right to get impleaded
in a proceedings is available only in the event the right to sue
survives.
3. Though order impugned is not a speaking order, we
are of the view that there is no scope for interfering with the
impugned order. The claim was for past maintenance. Past
maintenance is in the nature of debt. The claim was based on
an order in M.C. No. 36/2015 on the files of the same Court. In
such circumstances, the cause of action cannot be said to have
been abated.
The question whether the impleaded parties are entitled to
claim the amount is yet to be decided by the Family Court. We
therefore, find no reason to interfere with the impugned order.
OP (FC).No.21 OF 2021
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Leaving open all the contentions regarding the entitlement, we
dismiss this original petition, in limine. No costs.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
C.S.DIAS
JUDGE
PR
OP (FC).No.21 OF 2021
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE DECREE DATED
17.4.2010 OF THE FAMILY COURT
ETTUMANOOR
EXHIBIT P2 TRUE PHOTO COPY OF THE ORDER DATED
16.3.2016 IN M.C.NO.36/2015 OF THE
FAMILY COURT, PALA
EXHIBIT P3 TRUE PHOTO COPY OF THE PLAINT IN
O.P.NO.683/2018 DATED 8.11.2018 OF THE
FAMILY COURT, PALA
EXHIBIT P4 TRUE PHOTO COPY OF THE ORDER DATED
7.8.2020 IN CMP NO.213/2016 IN M.C.
NO.36/2015 OF THE FAMILY COURT, PALA
EXHIBIT P5 TRUE PHOTO COPY OF THE ORDER DATED
22.1.2020 IN CMP NO.282/2017 IN
M.C.NO.36/2015 OF THE FAMILY COURT,
PALA
EXHIBIT P6 TRUE PHOTO COPY OF THE IMPLEADING
PETITION DATED 22.1.2020
EXHIBIT P7 TRUE PHOTO COPY OF THE OBJECTION FILED
BY THE PETITIONER DATED 5.2.2020 TO
THE IMPLEADING PETITION
EXHIBIT P8 TRUE PHOTO COPY OF THE ORDER DATED
9.3.2020 IN I.A.NO.1/2020 IN
O.P.683/2018 OF THE FAMILY COURT, PALA
