Anoop Vijay vs Anoop Vijay
2021 Latest Caselaw 1234 Ker

                                                          C.R.
             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

               THE HONOURABLE MR.JUSTICE S.V.BHATTI

                                &

          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

   WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                      OP (FC).No.198 OF 2020

   AGAINST THE ORDER IN E.A.NO.07/2020 IN E.P.NO.32/2017 IN
               OP 251/2014 OF FAMILY COURT, MUVATTUPUZHA


PETITIONER/ PETITIONER/ JUDGMENT DEBTOR/ RESPONDENT :

             ANOOP VIJAY,
             AGED 39 YEARS,
             S/O. VIJAYAKUMAR P.K.,
             PANACKAPATHALIL HOUSE, KADAYANICKADU P.O.,
             VELLAVOOR VILLAGE, CHANGANACHERRY TALUK,
             KOTTAYAM DISTRICT - 686 541.

             BY ANOOP VIJAY(PARTY IN PERSON)

RESPONDENT/ RESPONDENT/ DECREE OLDER/ PETITIONER :

             ARUNIMA P.T.,
             D/O. THANKAPPAN, PATHAPPILLIL HOUSE,
             VENGOLA P.O., PERUMBAVOOR,
             KUNNATHUNADU TALUK,
             ERNAKULAM DISTRICT - 683 556.

             BY ADV. SRI.VIPIN NARAYAN

     THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD            ON
18-12-2020, THE COURT ON 13-01-2021 DELIVERED THE FOLLOWING:
 OP (FC).No.198 OF 2020

                                     2

                                                                  'CR'

                               JUDGMENT

Dated this the 13th day of January, 2021

Bechu Kurian Thomas, J.

Petitioner is the judgment debtor and is restrained from

travelling abroad by an order of the Family Court in execution

proceedings. He sought to wriggle out of the restraint order alleging

lack of jurisdiction of the Court to issue the restraint order. Court

directed withdrawal of the restraint order on condition that petitioner

deposits or furnishes security for the amounts due under the consent

decree. In an attempt to fly out of the country, petitioner challenges

the order of the Family Court directing him to furnish security for the

consent decree.

2. Petitioner married the respondent on 20.08.2008 and a

child was born on 06.07.2009. Disputes arose and a divorce petition

was filed by the respondent wife as O.P.No.251/2014 before the

Family Court, Muvattupuzha. Claim for return of money and gold

ornaments was initiated as O.P.No.345/2014 before the same court.

Finally, a compromise agreement was signed between the parties as

per which the petitioner agreed to pay Rs.10,75,000/- and 58 OP (FC).No.198 OF 2020

sovereigns of gold apart from agreeing to hand over the gold kept in

the Bank locker to the wife. Reciprocal obligations were also agreed

to by the wife.

3. Even though it is alleged that the parties did not

comply with the compromise agreement, a judgment was passed in

divorce O.P.No.251/2014 on 18.01.2016 as stipulated in the

compromise agreement, dissolving the marriage.

4. Since the monetary terms in the agreement were not

complied with by the petitioner, the wife filed E.P.No.12/2016.

However, the said execution petition was dismissed observing that

the petitioner-judgment debtor was not residing within the

jurisdiction of the Family Court, Muvattupuzha.

5. Thereafter, another execution petition as

E.P.No.32/2017 was filed by the wife seeking to execute the terms of

the compromise agreement, alleging that the petitioner-judgment

debtor was taking steps to leave the country to defeat the terms of

the agreement.

6. The Family Court, Muvattupuzha issued an arrest

warrant in E.P.No.32/2017 in O.P.No.251/2014 against the

petitioner. It is the claim of the original petitioner herein that, due to

the arrest warrant, he could not go back to UAE and hence he filed a OP (FC).No.198 OF 2020

petition as E.A.No.07/2020 in E.P.No.32/2017, seeking an order to

the Passport Officer, Kochi to permit the original petitioner to make

international travel for obtaining a job. The said application was

allowed by the Family Court by order dated 18.02.2020 on condition

that the petitioner-judgment debtor furnishes security for the amount

of Rs.10,75,000/- and for 58 sovereigns of gold ornaments. The

aforesaid order is produced as Ext.P8 and is impugned in this original

petition.

7. The main ground of challenge in the original petition is

that once it was held that execution proceedings was not

maintainable in the Family Court at Muvattupuzha, the said court

could not have subsequently issued an arrest warrant in a second

execution petition. It was also contended that when on the one hand

the court stated that it had no jurisdiction, it could neither have

issued an arrest warrant nor imposed any condition in the nature of

directing furnishing of security for permitting the petitioner to travel

abroad. Petitioner also referred to the judgment in O.P.(F.C)

No.681/2019 of this Court, between the same parties herein,

reported as Arunima v. Anoop [2020 (2) KLT 172], where the

order of the Family Court, Muvattupuzha, holding that it did not have

jurisdiction to deal with the execution petition filed by the OP (FC).No.198 OF 2020

respondent, since the husband was residing outside the jurisdiction of

the said court was upheld. He pointed out that the said decision is

binding. It was also contended that, due to the financial position of

the petitioner, he is unable to meet the commitments for payment of

maintenance ordered in M.C.No.14/2013 or those agreed upon in the

compromise agreement in O.P.No.251/2014. Petitioner who argued

as a party in person further submitted that, when the court had

already held that it had no jurisdiction to deal with the execution

petition, it could not have passed an order imposing conditions for

permitting his travel abroad.

8. The respondent, on the other hand contended that the

petitioner is hell bent upon trying to avoid paying any amount as

agreed to, and is dragging the hapless respondent, repeatedly to

different courts, in spite of agreeing in the compromise agreement to

pay the amounts due to her. It was argued that, neither the

maintenance amount nor the amount of Rs.10,75,000/- or even the

gold ornaments have been given to the respondent, who is struggling

to make her both ends meet, especially without a job for herself.

The learned counsel for the respondent Sri.Vipin Narayan further

submitted that the Family Court which passed the decree in

O.P.No.251/2014, certainly has the jurisdiction to deal with the OP (FC).No.198 OF 2020

execution petition and the contention to the contrary was not legally

sustainable. He also submitted that the judgment in O.P.(F.C)

No.681/2019 (reported as Arunima v. Anoop [2020 (2) KLT

172]), is per incuriam since the said judgment had not taken note of

Section 20 of the Family Courts Act which gives overriding

jurisdiction to the Family Courts Act even over the provisions of the

CPC. He contended that the finding of the Family Court that it had

no jurisdiction to execute the decree since the husband against

whom the decree is sought to be executed is residing outside the

jurisdiction of the court, was not legally proper. Even otherwise, the

learned counsel submitted that it was the petitioner who moved the

Family Court to permit him to travel abroad and it was in that

petition that Ext.P8 order was passed and hence when the petitioner

himself acquiesced into the jurisdiction of the Family Court,

Muvattupuzha, it was within the court's authority to pass the order in

the nature of Ext.P8.

9. We have considered the rival contentions. Sri.Anoop

Vijay, who argued in person repeatedly submitted that the Family

Court, Muvattupuzha has no jurisdiction over him and hence it could

not have issued an arrest warrant in E.P.No.32/2017 due to the

jurisdictional limitations. According to him, the court contradicted its OP (FC).No.198 OF 2020

own order by directing furnishing of security since in the earlier

execution petition the court had found that it had no jurisdiction

which was affirmed by this Court.

10. On an appreciation of the facts arising in this case,

We find that there is an attempt on the part of the petitioner-

judgment debtor, to avoid complying with the obligations incurred by

him in the compromise agreement in O.P.No.251/2014 of the Family

Court, Muvattupuzha. All what Ext.P8 ordered was to furnish security

for the decree in O.P.No.251/2014 for the purpose of enabling him to

travel abroad as he desires. We are of the view that the Family

Court, Muvattupuzha was certainly within its jurisdiction in passing

such orders in the course of execution of the decree for more reasons

than one.

11. The execution petition was filed by the decree holder -

wife before the Family Court, Muvattupuzha, which court had passed

the original decree. In the order dated 01.06.2019, the court had

directed the decree holder to file an application for transferring the

decree to the court within whose jurisdiction the judgment debtor is

residing. Until such a transfer of the execution petition was ordered,

the family Court Muvattupuzha was in seizin of the case and it was

certainly within the jurisdiction of the Family Court, Muvattupuzha, as OP (FC).No.198 OF 2020

a court which originally passed the decree to pass appropriate orders

in execution of the decree.

12. At this juncture, it may not be out of context to

mention that a decree is to be executed by the court which passed it

or by the court to which it is sent for execution. Section 18(3) of the

Family Courts Act 1984 (for short 'the Act') states that a decree or

order may be executed either by the Family Court which passed it or

by the other Family Court or ordinary civil court to which it is sent for

execution. On a reading of Section 18(3) of the Act, it can be seen

that the Family Court which passed the decree or order shall have

jurisdiction, until it is sent to another court for execution.

13. However, in the decision reported in Arunima's case

(supra) a judgment between the same parties herein, it was held that

Section 18(3) of the Act is subject to Section 39(1)(a) and (4) of the

CPC. It was also held that the Family Court which passed the decree,

cannot execute a decree personally against the judgment debtor,

who actually and voluntarily resides or personally works for gain, or

carries on business within the jurisdiction of another Family Court.

For a better comprehension the following observations in the said

judgment are relevant.

7. Going by Section 39(4) of CPC, we find that the OP (FC).No.198 OF 2020

aforesaid provision was inserted, by Act 22 of 2002, with effect from 01.07.2002. Section 39(4) is a negatively couched provision, which bars the court which passed the decree, from executing a decree against any person or property, outside the local limits of its jurisdiction. It is pertinent to note that Section 18(3) of the Family Court Act, is in pari materia with Section 38 of the CPC. Section 18(3) of the Family Court Act is the verbatim reproduction of Section 38 of CPC. As per both provisions, a decree or order may be executed, either by the court, which passed it or by the Court, to which it is sent for execution. The aforesaid common provisions of both Acts are general provisions, which would confer jurisdiction to execute a decree to both the courts i.e., the court, which passed the decree and the court to which it is sent for execution. But, the jurisdiction, conferred to the court which passed the decree under Section 38, is regulated by various provisions under Section 39 of CPC.

8. It is to be borne in mind that Section 39(4) was introduced in the statute book, by way of amendment, when Section 38 of CPC was already in existence. Therefore, we hold that Section 38 of CPC is subject to Section 39(4) of the CPC. It is pertinent to note that there is no specific provision in the Family Court Act, which would stand contrary to various provisions under Section 39 of CPC. Therefore, the provisions, under Section 39 of CPC, shall apply as such to the suits and proceedings before the Family Court. If Section 38 of CPC is subject to Section 39(4) of CPC, it must be held that Section 18(3) of the Family Court Act, which stands in pari materia with Section 38 of CPC is also subject OP (FC).No.198 OF 2020

to Section 39(1)(a) and (4) of the CPC and it will not override the negative couch, under Section 39(4) of CPC. In short, Section 18(3) of the Family Court Act, is subject to Section 39(1)(a) and (4) of CPC. Further, we find that the Family Court, which passed the decree, cannot execute a decree, personally, against the judgment debtor, who actually and voluntarily resides or personally works for gain, or carries on business, within the jurisdiction of another Family Court. Therefore, in such cases the decree is liable to be transferred under Section 39(i)(a) of the CPC to the Family Court, within whose jurisdiction the judgment debtor actually and voluntarily resides or carries on business, or personally works for gain. That apart, we further find that the legislative intent, behind the insertion of Section 39(4), is speedy and effective execution of the decree, notwithstanding the inconvenience, that may be caused to the decree holder, by the transfer of decree.

14. Though the aforesaid observations were rendered in a

case between the same parties, we note with great respects, that the

provision in Section 20 of the Act was not brought to the notice of

the Court, nor was it considered in the said decision, thereby

rendering the judgment in Arunima's case (supra) as per incuriam.

15. In order to properly elaborate and also appreciate

how the dictum in Arunima's case (supra) is per incuriam, it is

necessary to extract section 18 and S.20 of the Act as below :-

18. Execution of decrees and orders.- (1) A decree OP (FC).No.198 OF 2020

or an order [other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], passed by a Family Court shall have the same force and effect as a decree or order of a Civil Court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the execution of decrees and orders.

(2). An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code.

(3). A decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary Civil Court to which it is sent for execution.

20. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

16. Similarly Section 39(1)(a), (3) & (4) of CPC is also

extracted as below :-

39. Transfer of decree.- (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court [of competent jurisdiction],-

(a). If the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or

(b). xxxxxxxx OP (FC).No.198 OF 2020

(2). xxxxxxxxx [(3). For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.] [(4). Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.]

17. With the above provisions in mind, when we

appreciate the scheme and the legislative purpose behind the 1984

Act, it can be seen that a new and exclusive forum for adjudication

of matrimonial disputes was created. This is evident from Section 7

of the Act. Even though, the manner of execution shall be as per the

provisions of CPC, the forum for execution is provided in Section

18(3). By virtue of Section 20 of the Act, the forum created under

the Act shall have overriding effect over the forum mentioned in the

CPC.

18. Section 20 of the Act gives the Family Court Act an

overriding effect over all other laws. The overriding effect of the Act

under Section 20 and the applicability of CPC made subject to the

provisions of the Act, makes it abundantly clear that, the intention of OP (FC).No.198 OF 2020

legislature was to give exclusive jurisdiction to the Family Courts Act.

Coupled with the aforesaid statutory provisions, is the applicability of

the principle of special law prevailing over the general law. In the

instant case, the Family Courts Act is a special law while the CPC is

the general law. So viewed, the forum for execution created under

the Family Courts Act will prevail over the forum specified under the

CPC.

19. With the above principles in mind when we appreciate

Section 18 of the Act, it can be understood that though the manner

of executing the decree of a Family Court, is as prescribed in the

CPC, the court that has to execute the decree or order is primarily

the Family Court which passed the decree or order. The "other Family

Court or ordinary civil court to which it is sent for execution" is

secondary in nature. It arises only after an application by the decree

holder to send the decree for execution is made and the Family Court

which passed the decree or order, directs sending of the decree for

execution to the other Court. The words "by the other Family Court

or ordinary civil court" in Section 18(3) of the Act is controlled and

guided by the words "to which it is sent for execution". If it is not

sent, undoubtedly the jurisdiction to execute the decree will continue

to vest or remain with the Family Court that passed the decree or OP (FC).No.198 OF 2020

order. Such an interpretation arises on account of the overriding

effect of the Family Courts Act in Section 20 and also due to the

necessity of having certainty of laws. If the court of execution is a

fluctuating one, depending on wherever the judgment debtor resides,

an unscrupulous judgment debtor could easily circumvent or delay

execution by repeatedly shifting his place of residence.

20. It is a hard truth that in spite of stipulation of time

schedule for deciding the disputes brought before the Family Court,

for explicable and inexplicable reasons, the command of the Family

Courts Act for timely disposal, remains on the statute book as a letter

without achieving the purpose. It is often remarked that the real

problem of a decree holder in a suit starts with the obtaining of a

decree. If the objection of the nature raised in this case to the

execution petition is accepted, we are afraid, it would make

execution of a Family Court decree a mirage in the hands of a

judgment debtor who, with fleeting quickness, can change the

residence from one place to another. Such an interpretation is ex

facie contrary to the scheme, purpose and scope of the Family Courts

Act.

21. Though the decision in Arunima's case (supra) is by

a Bench of co-equal strength, since the provision in Section 20 of the OP (FC).No.198 OF 2020

Act was not brought to the notice of this Court or considered

independently, the said judgment, in our considered view, is per

incuriam.

22. The Latin expression per incuriam means through

inadvertence. A decision can be said to be given per incuriam when

the High Court or the Supreme Court, failed to refer to a relevant

provision of a Statute which has a significant impact on the decision.

In the decisions reported in National Insurance Co.Ltd. v. Pranay

Sethi and Others [2017 (16) SCC 680], and in Animal Welfare

Board of India v. Ombudsman [2006 (2) KLT 91], it has been

held that a judgment is per incuriam if the judgment is rendered

without noticing or in ignorance of a statute or statutory provision

which would render the earlier reasoning and conclusion

demonstrably wrong.

23. On the date when Ext.P8 order was passed,

admittedly the Family Court, Muvattupuzha which had passed the

original decree had not sent it to any other court for execution.

When the execution petition filed as E.P.No.32/2017 was pending

before the Family Court, Muvattupuzha, it was certainly within its

jurisdiction to pass Ext.P8 order.

24. Before we conclude, we wish to observe that even OP (FC).No.198 OF 2020

though the petitioner had ample opportunities to either abide by the

condition stipulated in Ext.P8 order or in the compromise agreement,

he has been persistent, only to avoid abiding by the obligations

accepted or incurred by him under a compromise decree. On the

other hand, he repeatedly attempts to go abroad without complying

with the terms of the settlement. In such circumstances, we are not

inclined to interfere in exercise of a supervisory jurisdiction to set

aside Ext.P8.

Accordingly the original petition is dismissed, but in the

nature of the case, without costs.

Sd/-

S.V.BHATTI, JUDGE

Sd/-

BECHU KURIAN THOMAS, JUDGE

RKM OP (FC).No.198 OF 2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF ORDER IN OP(FC) 358/2016 OF THE HON'BLE HIGH COURT ERNAKULAM DATED 19.7.2016.

EXHIBIT P2 TRUE COPY OF THE PETITION EP 12/2016 AT FC MUVATTUPUZHA DATED 18.4.2016.

EXHIBIT P3 TRUE COPY OF THE PETITION EP 32/2017 AT FC MUVATTUPUZHA DATED 25.11.2017.

EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED BY THE FC MUVATTUPUZHA TO THE FRRO ERNAKULAM DATED 12.12.17.

EXHIBIT P5 TRUE COPY OF THE LETTER FROM THE REGIONAL PASSPORT OFFICE TO PETITIONER DATED 2.1.18.

EXHIBIT P6 TRUE COPY OF THE ORDER IN EP NO.32/2017 OF THE FC MUVATTUPUZHA DATED 1.6.2019.

EXHIBIT P7           TRUE COPY OF EA NO.07/2020 IN EP
                     NO.32/2017 OF FC MUVATUPUZHA DATED
                     21.1.2020.

EXHIBIT P8           TRUE COPY OF THE ORDER IN EA 07/2020 IN EP
                     NO.32/2017 OF FC MUVATTUPUZHA DATED
                     18.2.2020.