Anish Thomas vs Elvi P. Varghese
2021 Latest Caselaw 18041 Ker

OP (FC) NO. 719 OF 2019                  1



            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                &
          THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

  FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
                   OP (FC) NO. 719 OF 2019

    AGAINST THE JUDGMENT IN OP 1152/2012 OF FAMILY COURT,
                  THIRUVALLA, PATHANAMTHITTA
PETITIONER:

             ANISH THOMAS, AGED 45 YEARS
             S/O P.T.THOMAS, PANAVELIL MATTATHIL HOUSE,
             AMAYANNUR.P.O, AYARKUNNAM VILLAGE, KOTTAYAM TALUK,
             KOTTAYAM DISTRICT.

           BY ADVS.
           VARGHESE C.KURIAKOSE
           SRI.P.J.JOSE
           SHRI.SUSANTH SHAJI
           SMT.G.LAYA
           SRI.T.P.THOMAS


RESPONDENT:

           ELVI P. VARGHESE, AGED 42 YEARS
           D/O.P.C.VARGHESE,PULLIYIL THARAKAN VEEDU,
           CHANNANIKADU.P.O, PANACHICKADU VLLAGE,
           KOTTAYAM TALUK,
           KOTTAYAM DISTRICT-686001.

           BY ADVS.
           SRI.JOSEPH GEORGE
           SRI.BIJO THOMAS GEORGE
           SMT.NICEY A. MENON
           SRI.P.A.REJIMON


      THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
03.09.2021,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 OP (FC) NO. 719 OF 2019                2




                             JUDGMENT

A.Muhamed Mustaque, J

Based on a compromise between the parties in O.P (Div.)

No.1152/2012 on the file of the Family Court, Thiruvalla, the

petitioner herein has agreed to deposit Rs.25 lakhs in fixed

deposit in a bank with a provision to draw interest by the

respondent herein for the welfare of the minor girl. It was

further stipulated that the minor daughter on attaining majority,

the amount can be withdrawn by her in accordance with her

discretion.

2. The above settlement arrived in a divorce case. The

compromise was entered on 14.6.2013. A decree of divorce was

passed on 7.3.2014. There was some dispute with regard to the

compliance of certain terms of the settlement. According to

petitioner, this resulted in delay in making the deposit.

3. In the meanwhile, the respondent filed E.P No.21/2016

before the Family Court, Thiruvalla to recover Rs.25 lakhs along

with interest. An arrest warrant was issued. That was

challenged before this Court in O.P(FC) No.629/2017.

4. This Court by an order dated 10.11.2017 granted an

interim order staying the enforcement of warrant, on deposit of

Rs.25 lakhs in a nationalised bank and production of deposit

receipt before the Family Court.

5. In compliance with the said order, the petitioner

herein deposited Rs.25 lakhs and produced receipt before the

Family Court, Thiruvalla.

6. It was submitted before this Court by the petitioner's

counsel that he has raised an objection regarding the

maintainability of the execution petition and that was not

considered by the Family Court. This Court directed the Family

Court, Thiruvalla to consider objection regarding the

maintainability in accordance with law. The respondent was also

allowed to withdraw the interest as per the compromise decree,

if the execution petition is found maintainable.

7. The Family Court, Thiruvalla thereafter considered the

maintainability of the execution petition and found that the

execution petition is maintainable. The Family Court also found

that the respondent/decree holder is also entitled to get interest

from 15.9.2013 till 20.11.2017, the date on which the

petitioner/judgment debtor deposited Rs.25 lakhs before the

bank. This order is under challenge before this Court in this

Original Petition.

8. The learned counsel for the petitioner/judgment

debtor Sri.Varghese C.Kuriakose raised only one point before us.

According to him, the execution court committed a jurisdictional

error in holding that the respondent/decree holder is entitled for

the interest for the delayed payment. According to him, the

execution court cannot go beyond the decree and award interest.

9. On the other hand, the learned counsel for the

respondent/decree holder Sri.Joseph George submits that the

very purpose of agreement leading to compromise decree is to

allow the minor child to withdraw the interest. The beneficiary,

therefore, is entitled to claim interest. According to the learned

counsel, the very purpose of settlement would be defeated, if no

interest is allowed. It is submitted that the minor child was

entitled to get maintenance for the delayed period, in depositing

the amount.

10. The execution court was not called upon to consider

the question regarding the maintenance to which the minor child

is entitled. The execution court is only executing the decree

based on the compromise. If the minor child is entitled for

maintenance otherwise is free to work out such remedy in

appropriate manner. It is for that court to consider such claim

for maintenance. The execution court cannot go beyond the

terms of decree. The parties to the compromise are equally

bound by such terms of compromise. They cannot rewrite the

terms of compromise in execution proceedings. Further the

execution court also cannot rewrite the terms of compromise.

Under Section 34(2) of the Code of Civil Procedure, if a decree is

silent with respect to the payment of interest, the Court shall be

deemed to have refused such interest. In such circumstances,

we are of the view that the Family Court, Thiruvalla committed a

grave error in exercise of jurisdiction in allowing the claim for

interest. Accordingly, we set aside the award of interest by the

execution court.

We direct the Family Court, Thiruvalla to hand over the

fixed deposit receipt to the respondent/decree holder and we also

allow respondent/decree holder to withdraw all the interest

accrued on the deposit amount.

The Original Petition is disposed of.

Sd/-

A.MUHAMED MUSTAQUE JUDGE

Sd/-

                                      DR. KAUSER EDAPPAGATH
ab                                              JUDGE





                APPENDIX OF OP (FC) 719/2019
PETITIONER EXHIBITS

EXHIBIT P1              TRUE PHOTOSTAT COPY OF O.P.

(DIVORCE)NO.1152/2012 WAS INITIALLY FILED BY THE RESPONDENT AS PLAINTIFF SEEKING DISSOLUTION OF MARRIAGE.

EXHIBIT P2 TRUE PHOTOSTAT COPY OF COMPROMISE PETITION

EXHIBIT P3 TRUE PHOTOSTAT COPY OF AGREEMENT ON 27.12.2013.

EXHIBIT P4 TRUE PHOTOSTAT COPY OF JUDGMENT DATED 7TH MARCH,2014 IN O.P(DIVORCE)NO.715/2013 ON THE FILES OF FAMILY COURT,THIRUVALLA.

EXHIBIT P5 TRUE PHOTOSTAT COPY OF E.P.NO.21/2016 ON THE FILES OF FAMILY COURT,THIRUVALLA.

EXHIBIT P6 TRUE PHOTOCOPY OF OBJECTION TO THE EXECUTION PETITION

EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE ORDER IN E.A.NO.54/2017 PASSED BY THE LEARNED FAMILY JUDGE ON 19.08.2017.

EXHIBIT P8 TRUE PHOTOSTAT COPY OF COMMUNICATION ISSUED TO THE HEADMASTER OF THE SCHOOL DATED 13.10.2017

EXHIBIT P9 TRUE PHOTOSTAT COPY OF COMMUNICATION ISSUED TO THE DEPUTY DIRECTOR OF EDUCATION 0N 29.10.2017

EXHIBIT P10 TRUE PHOTOTSTAT COPY OF THE JUDGMENT IN O.P(FC)NO.629/2017 DATED 06.06.2019 PASSED BY THIS HONOURABLE COURT.

EXHIBIT P11 PHOTOSTAT COPY OF THE ORDER IN E.P.NO.21/2016 IN O.P.NO.1152/2016 PASSED BY THE FAMILY COURT,THIRUVALLA.

RESPONDENT'S              NIL
EXHIBITS            :