Kerala High Court
Karthikeyan vs Helan Jesintha on 13 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
MAT.APPEAL NO. 37 OF 2021
AGAINST THE JUDGMENT DATED 27.7.2019 IN OP 1013/2018 OF FAMILY
COURT, PALAKKAD
APPELLANT/3rd PARTY:
KARTHIKEYAN, AGED 66 YEARS, S/O. KANDHASWAMY KOUNDER, SAI
GAYATHRI NILAYAM, R.V.P PUDUR, CHITTUR TALUK, PALAKKAD -
678555 NOW RESIDING AT PLOT NO. 32, VINAYAKA GARDEN, R.
PONNAPURAM, PONNAPURAM P O, POLLACHI NORTH, COIMBATORE-
638657.
BY ADVS. P.B.KRISHNAN
SABU GEORGE, P.B.SUBRAMANYAN
RESPONDENTS/PETITIONER & RESPONDENT:
1 HELAN JESINTHA, AGED 55 YEARS, D/O. VINCENT, MEKKANKALAM,
ELIPARA, KOZHIPARA P O, CHITTUR TALUK, PALAKKAD - 678554.
*ADDITIONAL ADDRESS ADDED
*HELAN JESINTHA, AGED 55, W/O AROGYASWAMY, THASAMI NEST,
POLISH KANDHASWAMY STREET, WARD NO.69, PULIYAKULAM PO,
COIMBATORE, TAMILNADU 641045
ADDED AS PER ORDER DATED 1.12.2020 IN IA NO.2/2020IN
Mat.APPEAL (FILING)NO.35812 OF 2020
2 AROGYASWAMY, AGED 63 YEARS, EDATHAARUVEEDU, KOZHIPARA P
O, VADAKKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD -
678554.
BY ADVS. ABRAHAM MATHAN
SRI.B.PREMNATH (E), SHRI.SARATH M.S.
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON
13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mat.Appeal No.37/2021
-:2:-
JUDGMENT
Dated this the 13th day of September, 2021
A.Muhamed Mustaque,J.
This appeal is filed at the instance of the third party after obtaining
leave of this Court. According to him, the property over which he has title
has been attached in the proceedings in OP No.1013/2018 on the file of
Family Court, Palakkad. The Family Court has also created charge while
disposing of the above Original petition. Since the respondent/decree
holder has not taken any steps to execute the decree, the appellant has no
other option but to approach this court aggrieved by the creation of charge
over the property.
2. We heard the learned counsel for the appellant and the
learned counsel for the 1st respondent. Though notice was served to the 2 nd
respondent, none appears.
3. The 1st respondent filed a claim petition against the 2nd
Mat.Appeal No.37/2021
respondent for return of gold ornaments or its value. The Family Court
granted a decree to realise an amount of Rs.22,50,000/- with interest.
According to the appellant, he is the owner of the property and therefore
his property cannot be proceeded to recover any amount due to the 1st
respondent. It appears that the 2nd respondent has not challenged the
decree granted against him. Therefore, the only question survives before us
is regarding the charge created over the property allegedly purchased by
the appellant from the 2nd respondent. It is appropriate that this question is
decided by the Family Court itself, in view of the fact that respondent had
not filed any execution petition.
4. We, in such circumstances, set aside the impugned judgment
to the extent granting a decree creating charge over the property. Both
counsel have no objection having the said recourse. Let the Family Court
decide the issue whether charge can be created over the immovable
property described in the petition schedule. The remand is only for the
Mat.Appeal No.37/2021
limited purpose to enter into the finding on that issue, granted in relief
No.5. The decree granting relief to the 1 st respondent to recover an amount
of Rs.22,50,000/- along with interest has not been interfered in this appeal.
Both parties are directed to appear before the Family Court on 27/9/2021.
Appellant is suo motu impleaded in the proceedings and shall be shown as
the 2nd respondent in the original proceedings before the Family Court.
Both parties shall be given sufficient opportunity to adduce evidence. The
Family Court shall dispose of the case within a period of six months from
the date of appearance of the parties.
The appeal is disposed of.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
DR. KAUSER EDAPPAGATH, JUDGE
kp True copy
P.A. To Judge
Mat.Appeal No.37/2021
APPENDIX OF MAT.APPEAL 37/2021
PETITIONER ANNEXURE
ANNEXURE A CERTIFIED COPY OF SALE DEED NO.2194 OF
1983 OF SRO, CHITTOOR, DATED 19.09.1983.
ANNEXURE B CERTIFIED COPY OF SALE DEED NO.1794 OF
2013 OF SRO, KOZHINJAMPARA, DATED
07.09.2013.
ANNEXURE C CERTIFIED COPY OF SALE DEED NO.1336 OF
2015 OF SRO, KOZHINJAMPARA, DATED
23.07.2015.
ANNEXURE D TRUE COPY OF THE BASIC TAX RECEIPT,
DATED 29.08.2019, OBTAINED ONLINE.
ANNEXURE E TRUE COPY OF THE BASIC TAX RECEIPT,
DATED 15.09.2020 OBTAINED ONLINE
ANNEXURE F ORIGINAL OF THE BUILDING TAX RECEIPT
DATED 26.08.2019.
ANNEXURE G ORIGINAL OF THE BUILDING TAX RECEIPT
DATED 23.06.2020.
ANNEXURE H TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 15.09.2020, OBTAINED ONLINE.
