Treasa Bency @ Bency.N.L vs Dr.Preceline George @ Antony ...
2021 Latest Caselaw 15712 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                &
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
    FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                 MAT.APPEAL NO. 378 OF 2019
 AGAINST THE PORTION OF JUDGMENT IN OP 1698/2009 OF FAMILY
 COURT,ERNAKULAM WHICH DIRECTS THE APPELLANTS TO RTURN THE
GOLD ORNAMENTS ALLEGEDLY GIVEN BY THE 1ST RESPONDENT AS PER
                        THE COUNTER CLAIM
APPELLANT/PETITIONER:

         TREASA BENCY @ BENCY N.L.
         AGED 35 YEARS
         D/O.N.V.LONAPPAN, FORMER W/O.DR.PRECELINE GEORGE,
         AGED 35 YEARS, NAISSERY HOUSE, NMO.2391/60, VADHYA
         ROAD, KALOOR, ERNAKULAM, PIN-682 017.

         BY ADVS.
         K.V.BHADRA KUMARI
         SMT.ANILA GEORGE



RESPONDENTS/RESPONDENTS:

    1     DR.PRECELINE GEORGE @ ANTONY PRECELINE GEORGE
          AGED 38 YEARS
          S/O.A.T.GEORGE, ARAKKAL HOUSE, DOOR NO.36/3137,
          KATHRIKADAVU, KALOOR P.O., ERNAKULAM, COCHIN-17,
          RESIDING AT SURYA GARDENS, FLAT NO.5,
          MAROTTICHUVADU, EDAPPALLY P.O., COCHIN-24,
          ERNAKULAM, WORKING AS ASST.SURGEON, REG.37755,
          PRIMARY HEALTH CENTRE, ELAMBULASSERY, PALGHAT.
 C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 &
O.P.(FC).No.154/2019
                               -:2:-

    2      MARGERATE PREMY
           AGED 63 YEARS
           W/O.A.T.GEORGE, ARAKKAL HOUSE, DOOR NO.36/3137,
           KATHRIKADAVU, KALOOR P.O., ERNAKULAM, COCHIN-17.

    3      A.T.GEORGE
           AGED 68 YEARS
           ARAKKAL HOUSE, DOOR NO.36/3137, KATHRIKADAVU,
           KALOOR P.O., ERNAKULAM, COCHIN-17, RESIDING AT
           SURYA GARDENS, FLAT NO.5, MAROTTICHUVADU,
           EDAPPALLY P.O., COCHIN-24.

          BY ADVS.
          SRI.SANTHAN V.NAIR
          SMT.MARGERET K. JAMES




     THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 30.07.2021, ALONG WITH OPFC 154/2019 THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 &
O.P.(FC).No.154/2019
                               -:3:-

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                 &
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
    FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                     OP (FC) NO. 154 OF 2019
  AGAINST THE ORDER IN EP 7/2016 IN OP 1698/2009 OF FAMILY
                   COURT,ERNAKULAM, ERNAKULAM
PETITIONER/JUDGMENT DEBTOR:

           TREASA BENCY @ BENCY.N.L.,AGED 26 YEARS
           W/O.DR.PRECELINE GRORGE, (MARRIAGE ANNULLED ON
           31/7/2012), D/O.LATE LONAPPAN, AGED 31 YEARS,
           NAISSERY HOUSE, NO.2391/60, VADHYA ROAD, KALOOR,
           ERNAKULAM.

           BY ADVS. K.V.BHADRA KUMARI,      SMT.P.V.RADHAMANI


RESPONDENT/DECREE HOLDER:

           DR.PRECELINE GEORGE @ ANTONY PRECELINE GEORGE,
           AGED 34 YEARS, S/O.A.T.GEORGE, ARAKKAL HOUSE,
           DOOR NO.36/3137, KATHRIKADAVU, KALOOR P.O.,
           ERNAKULAM, COCHIN - 17, RESIDING AT SURYA
           GARDENS, FLAT NO.5, MAROTTICHUVADU, EDAPPALLY
           P.O., COCHIN - 24, ERNAKULAM, WORKING AS
           ASST.SURGEON, REG.NO.37755 PRIMARY HEALTH CENTRE,
           ELAMBULASSERY, PALGHAT.

           BY ADVS. MARGERAT K. JAMES, SRI.SANTHAN V.NAIR

     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
30.07.2021, ALONG WITH MA 378/2019 THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 &
O.P.(FC).No.154/2019
                                -:4:-




                          J U D G M E N T

Dated this the 30th day of July, 2021

A.Muhamed Mustaque,J.

Mat.Appeal No.378/2019 is filed along with an

application to condone the delay of more than six

years, challenging the decree awarded in a counter

claim in OP No.1698/2009 on the files of Family Court,

Ernakulam. The appellant is the petitioner in the above

Original Petition. The above original petition was

decreed and the respondents raised a counter claim in

the same. That appears to have sustained to a certain

extent. We shall advert the same separately in the

connected matter OP(FC) No.154/2019.

2. There was a challenge against the grant of

decree in favour of the appellant in OP No.1698/2009 at

the instance of the respondents in Mat.Appeal

No.651/2012. That appeal was disposed after hearing the

appellant on 4/7/2013. Appellant has never chosen to

raise a cross objection or cross appeal in that appeal

as against the decree alleged to have been granted in a C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 & O.P.(FC).No.154/2019

counter claim. The present appeal is filed when

respondents filed an Execution Petition before the

Family Court to execute the alleged decree granted in

the counter claim. There is a serious dispute in regard

to the execution of the decree granted in the counter

claim. That is the issue in OP No.154/2019 filed by the appellant.

3. As regards the delay involved in filing the

Mat.Apepal, we are of the view that delay cannot be

condoned for the simple reason that appellant failed to

challenge the alleged decree passed in the counter

claim at the appropriate time. Appellant was given

notice in the appeal filed by the respondents against

the decree in the same proceedings and the proceedings

were concluded in 2013. The petitioner came up with

this appeal only in 2019. Therefore we are of the view

that delay cannot be condoned. The delay petition is

hence dismissed. Consequently, the appeal is also

dismissed.

4. In regard to OP(FC) No.154/2019, it is

appropriate to refer the preceding paragraph of the

operative portion of the judgment in OP No.1698/2009. C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 & O.P.(FC).No.154/2019

"21. Regarding counter claim, RW1 admits in cross examination that she is in possession of the gold ornaments claimed under counter claim, therefore, I feel that no elaborate discussion is necessary on this issue. Hence it is found that PW1 is entitled to get it back. In view of the aforesaid reasons, I am to hold that the petitioner is succeeded in proving the entrustment of cash and gold and therefore, she is entitled to the decree as prayed for. The points are found accordingly."

5. The Family Court after adverting to certain

portion of the admission made by the appellant in

regard to possession of gold ornaments, allowed the

counter claim. According to the respondents, this is an

admission of claims raised by the respondents in the

counter claim. According to the appellant, it is not an

admission of any counter claim, it is only an admission

of the gold ornaments in her possession. However,

appellant admitted possession of 2 grams of thali

belonged to the respondent/husband and expressed her

willingness to return the same to the

respondent/husband.

6. In execution proceedings, produced as Ext.P4

order, the Family Court concluded that respondents are

entitled to recover 11 sovereigns. This was with C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 & O.P.(FC).No.154/2019

reference to the claim in counter claim and the alleged

admission made during cross examination.

7. Essentially the issue is regarding the

execution of the decree. The issue is to be decided by

the executing court as per Section 47 of the CPC. The

execution court has to first decide as to what is the admission made by the appellant. It is essential in

the light of the nature of decree granted in sustaining

counter claim. The Calculation of 11 sovereigns with

reference to counter claim is not proper. Calculation

has to be very specific with reference to the admission

of any ornaments belonging to the respondents in

possession of the appellant made in the cross

examination. Therefore, proper appreciation of such

admission is required while considering the point of

executability of the decree. We find that the execution

court had not adverted to such aspects which are

required for execution of the decree.

8. Therefore, we set aside Ext.P4 and remand the

matter back to the Family Court for further

consideration. Parties are directed to appear before

the Family Court on 26/8/2021. On that day, petitioner

shall return 2 grams of thali in her possession and C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 & O.P.(FC).No.154/2019

that shall be accepted by the respondents without

prejudice to other claims. Family Court shall, after

adverting to the nature of claims made, pass

appropriate orders in execution petition, within a

further period of three months.

9. In the light of the above, the delay petition and Mat.Appeal No.378/2019 are dismissed. OP(FC)

No.154/2019 is allowed and the impugned order is set

aside.

Parties are directed to appear before the Family

Court on 26/8/2021.

Sd/-

A.MUHAMED MUSTAQUE JUDGE Sd/-

                                          DR. KAUSER EDAPPAGATH
                                                    JUDGE
Kp          True copy


                P.A. To Judge

C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 & O.P.(FC).No.154/2019

APPENDIX OF OP (FC) 154/2019

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE TYPED COPY OF THE DECREE PASSED BY THE FAMILY COURT, ERNAKULAM IN O.P.NO.1698/2009.

EXHIBIT P2 A TRUE COPY OF THE E.P.NO.7/2016 IN O.P.NO.1698/2009 FILED BY THE RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN E.P.NO.7/2016.

EXHIBIT P4 CERTIFIED COPY OF THE ORDER PASSED BY THE FAMILY COURT, ERNAKULAM IN E.P.NO.7/2016 IN O.P.NO.1698/2009 DATED 4/1/2019.

EXHIBIT P5 A TRUE COPY OF THE JUDGMENT IN O.P.NO.1698/2009 ALONG WITH O.P.NO.1561/2009 AND O.P.NO.919/2010 DATED 31/7/2012.

EXHIBIT P6 A TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN MAT.APPEAL NO.651/2012 ALONG WITH MAT.A.NO.29/2013 & 85/2013.

EXHIBIT P7 A TRUE COPY OF THE DEPOSITION OF THE PETITIONER BEFORE THE COURT BELOW.

EXHIBIT P8 TRUE COPIES OF BILL FOR PURCHASE OF GOLD ORNAMENTS ISSUED IN THE NAME OF THE PETITIONER'S FATHER.