Op 506/2016 Of Family Court vs By Adv. Sri.Satheeshan Alakkadan
2021 Latest Caselaw 480 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

             THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                                 &

               THE HONOURABLE MRS. JUSTICE M.R.ANITHA

     THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                        OP (FC).No.6 OF 2021

              OP 506/2016 OF FAMILY COURT, THALASSERY


PETITIONER/PETITIONER

             P.K.SUDHA
             AGED 39 YEARS
             W/O SAJEEVAN,
             PARALLETTIL,PURAMERI,
             NOW RESIDING AT "SREE NILAYAM",
             PALLICHAL P O, TRIPPANGOTTUR AMSOM, POILOOR DESOM,
             THALASSERY TALUK,
             KANNUR DIST5RICT-670693.

             BY ADV. SRI.SATHEESHAN ALAKKADAN

RESPONDENT/RESPONDENT

             SAJEEVAN
             S/O KELU,
             ONTHATHU, VADAKKE POILOOR P O, TRIPPANGOTTUR AMSOM,
             POILOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT-
             670693.


     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION           ON
07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(FC).6/2021
                                           2

                                    JUDGMENT

Dated : 7th January, 2021

M.R.Anitha, J.

1.Petitioner sought for a declaration that order dated 8.12.2020 to conduct sale of property in E.P.51/2018 in FDIA 1663/2017 in OP 506/2016 on the file of the Family Court, Thalassery on 8.1.2021 as illegal and further to direct the Family Court, Thalassery to keep in abeyance all further proceedings in E.P.51/2018 referred above pending disposal of this OP.

2.According to the petitioner, she is the respondent in E.P.51/2018 in FDIA.1663/2017 in OP.506/2016 on the file of the Family Court, Thalasery. That OP was filed for partition of the property. Preliminary decree was passed and in lieu of the same, final decree was also passed allotting separate shares to the petitioner and respondent. As per the share list an amount of Rs.85,250/- was directed to be paid to the respondent as owelty. Respondent filed execution petition for realization of the owelty amount as per the final decree.

3.Petitioner had already paid Rs.35,000/- in the OP(FC).6/2021

above E.P through Court and an amount of Rs.50,250/- is the balance. The Execution Court ordered sale of the property on 8.1.2021 and decree holder got advanced the case in the meantime. It was ordered for sale on 8.1.2021 and posted for report to 11.1.2021. Petitioner has not taken the delivery of the property till date. The order of the Execution Court to conduct the sale is highly illegal.

4.Heard the learned counsel for the petitioner.

5.Petitioner approached this Court to declare the order passed by the Family Court to conduct sale of the property in E.P.51/2018 in FDIA.1663/2017 as illegal. Further a direction was also sought to keep in abeyance the execution proceedings till the disposal of this OP. The reason stated by the petitioner is that there was an order in M.C.244/2015 filed by the petitioner against this respondent and a monthly maintenance at the rate of Rs.3000/- per month was ordered and against that order, the respondent filed Revision as R.P(FC).522/2017, which is now pending. It is also her contention that as per order dated 18.12.2018 a stay of the execution of the order in M.C.244/2015 was ordered on condition of deposit of 50% of the amount OP(FC).6/2021

awarded and continued payment of maintenance at the rate of Rs.1500/- per month. According to her, she has no income and is depending on the respondent. So the averment in the Original Petition itself would make it clear that the petitioner is seeking for a declaration of the proceedings of the learned Family Court in ordering sale of the property in an execution proceedings as illegal and further wanted to keep the execution proceedings in abeyance on the ground that she is unable to pay the amount. She also pleaded about the parallel MC proceedings pending in between the petitioner and the respondent. She has no complaint that the respondent is not paying the amount in compliance of the order. Hence the sale proceedings now initiated by the Execution Court is with respect to an owelty amount due to the respondent from the petitioner in a decree obtained. In effect, we do not find any arbitrariness or illegality causing miscarriage of justice to the petitioner so as to exercise the supervisory jurisdiction vested upon this Court in order to stay the execution proceedings pending against the petitioner in a decree lawfully passed by a competent court. OP(FC).6/2021

6.This Original petition is found to be devoid of merit and hence dismissed.

Sd/-

K.VINOD CHANDRAN Judge

Sd/-

M.R.ANITHA Judge

Mrcs/7.1.

OP(FC).6/2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE FINAL DECREE, THE PLAN AND SHARE LIST IN FBIA 1663/2017 IN OP 506/16 OF FAMILY COURT THALASSERY.

EXHIBIT P2 TRUE COPY OF THEN EP 51/2018 IN FBIA 1663/2017 OF FAMILY COURT THALASSERY.

EXHIBIT P3 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 25/11/2019 ISSUED BY DR GOPINATHAN, ORTHO TURST HOSPITAL, KOZHIKODE.

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 18/12/2018 IN RP(FC) 522/2017.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 21/08/2019 IN MC 80/2019 ON THE FAMILY COURT, THALASSERY.

EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF REVISION IN RP(FC) 16/2020.

EXHIBIT P7 THE MEMORANDUM OF REVISION PETITION IN RP(FC)522/17.