Kerala High Court
Anjanadevi vs Kamalamma on 16 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA,
1943
MA (EXE.) NO. 2 OF 2020
AGAINST THE ORDER/JUDGMENT IN OP 421/2012 OF FAMILY
COURT, PALAKKAD, PALAKKAD
APPELLANT/S:
1 ANJANADEVI, AGED 44 YEARS
D/O. SASIDHARAN NAIR, VASANTHAM COTTAGE, FLAT
NO. 4, AKATHETHARA P.O. PALAKKAD DISTRICT 678
008.
2 AMRUTHA.M. NAIR, AGED 23 YEARS
D/O. (LATE) C.S. MURALIDHARAN,
VASANTHAM COTTAGE, FLAT NO. 4, AKATHETHARA P.O.
PALAKKAD DISTRICT 678 008.
BY ADVS.
P.B.KRISHNAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SMT.B.ANUSREE
SRI.MANU VYASAN PETER
SMT.MEERA P.
RESPONDENT/S:
1 KAMALAMMA,AGED 88 YEARS
MOTHER OF J.D. LATE C.S. MURALIDHARAN,
W/O.C.K. SREEDHARAN KORITHODE HOUSE,
CHANGALIKUZHI, MUNDAKKAYAM P.O. KOTTAYAM
DISTRICT 686 513.
-2-
Mat.A.No. 2 of 2020
2 THE COMMANDANT,
SAP CAMP, PEROORKADA, TRIVANDRUM 695 005.
3 THE DIRECTOR GENERAL OF POLICE,
HEAD QUARTERS, VELLAYAMBLAM, TRIVANDRUM 695
010.
BY ADVS.
SRI.ADITHYA RAJEEV
SHRI.SREEDEV U
THIS MAT APPEAL (EXECUTION) HAVING COME UP FOR
ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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Mat.A.No. 2 of 2020
JUDGMENT
A.Muhamed Mustaque, J.
The appellants are the decree holders in E.P.No.69/2017
in O.P No.421 of 2012 on the file of the Family Court,
Palakkad.
2. The 1st appellant Anjana Devi is the ex-wife and the
2nd appellant Amrutha M. Nair is the daughter of the deceased
Muralidharan .
3. The marriage between Anjana Devi and
Muralidharan was dissolved by a decree of divorce on
29.01.2011.
4. As per the compromise for dissolution of marriage,
Muralidharan was agreed to pay Rs.15 lakhs along with
interest towards alimony and maintenance.
Mat.A.No. 2 of 2020
5. The 1st respondent is the mother of the deceased
Muralidharan. The appellants moved Execution Petition No.69
of 2017 to execute the decree as against the deceased
Muralidharan. The official respondents are also arrayed being
the employer of the deceased Muralidharan.
6. In that execution proceedings, appellants filed a
petition under Order XXI Rule 46 of the Code of Civil
Procedure for attachment of debt not in possession of the
judgment debtor. The attachment is sought in respect of
DCRG payable to the deceased.
7. The Family Court dismissed the petition holding
that none of the legal heirs of the deceased had approached
the authority demanding retirement benefits of the deceased
and held that the retirement benefits cannot be processed
without any claim from the legal heirs with necessary
Mat.A.No. 2 of 2020
documents to prove their claim.
8. There are dispute with regard to the legal heirship
of the deceased Muralidharan. In a connected matter, namely
OP(FC) No.132 of 2019, today, this Court dealt with an issue
regarding the legal status claimed by one Sreevidhya, who
claims that she was the legally wedded wife of the deceased
Muralidharan. However, Sreevidhya is not made a party to the
present case. It appears that Sreevidhya is having a child and
she claims that the deceased Muralidharan is the father of the
child.
9. There cannot be any doubt in regard to the service
benefits payable to the deceased. The enforcement of decree is
not against the legal heirs in their personal capacity but
against the assets and estate of the deceased Muralidharan to
the extent legal heirs are likely to inherit. Whether legal heirs
Mat.A.No. 2 of 2020
moved application for processing the retirement benefits is
immaterial for consideration of enforcement of decree debt.
The Court can very well direct garnishee to furnish the details
of the entitlement of the deceased and can enforce the decree.
However, all persons, who claim to be legal heirs should be
made party to such proceedings. There should have notice on
such proceedings. Irrespective of difference of opinion among
the legal heirs, Court has to consider whether decree debt can
be enforced by recovery from the DCRG payable to the
deceased. If there is no legal bar against enforcing a decree
debt against DCRG payable to the deceased, the Court can very
well recover the decree debt from such amount payable. The
enquiry of such proceedings is very limited. The Court can call
upon the garnishee to furnish details of the amount payable to
the deceased and thereafter, on being satisfied the decree debt
can be enforced, direct garnishee to deposit the amount before
Mat.A.No. 2 of 2020
the Court. The procedure under Order XXI Rule 46 of the
Code of Civil Procedure shall be followed in such matter.
However, it is appropriate that all the parties claiming as legal
heirs should also made party to such proceedings. We already
made it clear that irrespective of difference of opinion, the
persons claim to be legal heirs, the Court can very well enforce
decree debt, if such amount can be recovered from the DCRG
payable to the deceased. We, therefore, set aside the impugned
order and direct the Family Court to pass fresh orders. We
also direct the appellants to implead Sreevidhya and her
daughter, who also have laid a claim as the legal heirs of the
deceased in the party array. It is made clear that any amount
left after satisfying the decree amount can be distributed only
after the adjudication of the dispute among the parties
claiming legal heirs. Further, the quantification of the amount
due to deceased, if possible, is only through a proper
Mat.A.No. 2 of 2020
application, we give liberty to the 2nd appellant to process the
application subject to the decision regarding the
apportionment among legal heirs by the Family Court as
aforenoted.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
sd/-
DR. KAUSER EDAPPAGATH
JUDGE
das
