Kerala High Court
Sojan Varghese vs Samol on 5 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
OP (FC) NO. 260 OF 2020
AGAINST THE ORDER/JUDGMENT IN O.P.No.243/2017 OF FAMILY
COURT, MUVATTUPUZHA, ERNAKULAM
PETITIONER/S:
1 SOJAN VARGHESE, AGED 45 YEARS,
S/O.VARGHESE, PUDUSSERY PUTHENPURAYIL HOUSE,
NADUKANI KARA, KEERAMPARA VILLAGE,
KOTHAMANGALAM TALUK, PIN-686691.
2 ALEYAMMA, AGED 68 YEARS,
W/O. VARGHESE, PUDUSSERY PUTHENPURAYIL HOUSE,
NADUKANI KARA, KEERAMPARA VILLAGE,
KOTHAMANGLAM TALUK, PIN-686691.
BY ADVS.
V.RAJENDRAN (PERUMBAVOOR)
SRI.N.RAJESH
RESPONDENT/S:
SAMOL, AGED 39 YEARS,
D/O.THOMAS, KALLENKURIYIL HOUSE,
KOTTAPPADY VILLAGE, VADAKKUMBHAGOM KARA,
KOTHAMANGALAM TALUK - 686692.
BY ADVS.
SRI.K.V.SURESH KUMAR
SRI.ANISH PAUL
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
05.10.2021, ALONG WITH Mat.Appeal NO..259/2019, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(FC) No.260/2020 & Mat.Appeal No.259/2019 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
MAT.APPEAL NO.259 OF 2019
AGAINST THE ORDER/JUDGMENT IN OP 243/2017 OF FAMILY COURT,
MUVATTUPUZHA, ERNAKULAM
APPELLANT/S:
1 SOJAN VARGHESE, AGED 44 YEARS,
S/O.VARGHESE, PUDUSSERY PUTHENPURAYIL HOUSE,
NADUKANI KARA, KEERAMPARA VILLAGE,
KOTHAMANGALAM TALUK.
2 ALEYAMMA, AGED 67 YEARS
W/O. VARGHESE, PDUDSSERY PUTHENPURAYIL HOUSE,
NADUKANI KARA, KEERAMPARA VILLAGE,
KOTHAMANGALAM TALUK.
BY ADVS.
V.RAJENDRAN (PERUMBAVOOR)
N.RAJESH
RESPONDENT/S:
SAMOL, AGED 38 YEARS,
D/O THOMAS, KALLENKURIYIL HOUSE,
KOTTAPADI VILLAGE, VADAKKUMBHAGOM KARA,
KOTHAMANGALAM TALUK-686 692.
BY ADVS.
SMT.RESMI THOMAS
SRI.K.V.SURESH KUMAR
SRI.C.V.SHAJU
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
05.10.2021, ALONG WITH OP (FC).260/2020, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
O.P.(FC) No.260/2020 & Mat.Appeal No.259/2019 3
JUDGMENT
[OP (FC) No.260/2020, Mat.Appeal No.259/2019]
A.Muhamed Mustaque, J.
These matters are between the same parties. For brevity, the
parties are referred to with reference to the status in Mat.Appeal
No.259 of 2019.
2. The appellants herein are the respondents in O.P.No.243
of 2017 on the file of the Family Court, Muvattupuzha.
3. The Family Court appointed an Advocate Commissioner
to record the evidence of both parties. It appears that the
appellants remained absent to cross-examine the respondent.
4. Based on the fact that the respondent was not cross-
examined and placing reliance on the oral testimony of PWs 1 and
2 and also relying on the documentary evidence of Exts.A1 to A3,
the Family Court allowed the claim of the respondent to realise the
gold ornaments and money.
O.P.(FC) No.260/2020 & Mat.Appeal No.259/2019 4
5. It is to be noted that the appellants were not set ex parte.
The Family Court granted the decree on merits.
6. On going through the impugned judgment itself, we find
there was no appreciation of the pleadings or the evidence
adduced in the matter. Merely for the reason that the witnesses
were not cross-examined, the court cannot grant a decree without
entering into a finding.
7. The Original Petition No.260 of 2020 was filed
challenging execution proceedings.
8. We cannot ignore the latches on the part of the appellants
in contesting the matter. We are of the view that the matter has to
be remanded for consideration on merits. We are also of the view
that the present dilemma was created by the appellants as they
failed to appear before the Advocate Commissioner for cross-
examination. Therefore, we are of the view that the remand
should be on payment of cost. The appellants are directed to pay a
O.P.(FC) No.260/2020 & Mat.Appeal No.259/2019 5
cost of Rs.30,000/- (Rupees thirty thousand only) to the
respondent. The cost shall be paid through the counsel appearing
before this Court within two weeks. The appellants shall produce
the receipt before the Family Court. The parties are directed to
appear before the Family Court on 01.11.2021. If any of the
parties cannot appear before the Family Court physically, the
Family Court shall allow such parties to appear online. The
impugned judgment is set aside based on the payment of cost as
above. The attachment already effected will continue till the
disposal of the original petition before the Family Court. The
Mat.Appeal is allowed. The original petition filed challenging the
execution proceedings has thus become infructuous. No order as
to costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
DR. KAUSER EDAPPAGATH, JUDGE
ln
O.P.(FC) No.260/2020 & Mat.Appeal No.259/2019 6
APPENDIX OF OP (FC) 260/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DECREE IN OP NO.243/17
DATED 19.12.2018 OF FAMILY COURT,
MUVATTUPUZHA.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN OP NO.243/2017
DATED 19.12.2018 OF FAMILY COURT,
MUVATTUPUZHA.
EXHIBIT P3 TRUE COPY OF THE ORDER OF THIS HON'BLE COURT
IN IA NO.02/2019 IN MAT APPEAL NO.259/19
DATED 17.01.2020.
EXHIBIT P4 TRUE COPY OF EP NO.16/2019 IN OP NO.243/2017
ON THE FILE OF FAMILY COURT, MUVATTUPUZHA.
EXHIBIT P5 TRUE COPY OF THE ATTACHMENT SCHEDULE IN EP
NO.16/19 IN OP NO.243/17 OF FAMILY COURT,
MUVATTUPUZHA DATED 15.05.2019.
EXHIBIT P6 TRUE COPY OF EA NO.32/19 IN EP NO.16/19 IN
OP NO.243/2017 OF FAMILY COURT,
MUVATTUPUZHA.
EXHIBIT P7 TRUE COPY OF EA NO.10/2020 IN EP NO.16/19 IN
OP NO.243/2017 OF FAMILY COURT,
MUVATTUPUZHA.
EXHIBIT P8 TRUE COPY OF SALE DEED NO.3981/2005 DATED
04.06.2005 OF KOTHAMANGALAM SRO.
EXHIBIT P9 TRUE COPY OF STATEMENT OF ACCOUNT IN RESPECT
OF LOAN NO.8933 DATED 04.02.2020 ISSUED FROM
KEERAMPARA SERVICE CO-OPERATIVE BANK.
EXHIBIT P10 TRUE COPY OF FAIR VALUE STATEMENT OF THE
PROPERTY IN SY NO.326 OF KEERAMPARA VILLAGE.
EXHIBIT P11 TRUE COPY OF THE ORDER IN EA NO.10/2020 IN
EP NO. 16/19 IN OP NO.243/2017 DATED
29.02.2020 OF FAMILY COURT, MUVATTUPUZHA.
EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 28.02.2020
IN OP NO.408/2016 OF FAMILY COURT,
MUVATTUPUZHA.
