Mariakutty Joseph vs Sindhu Thomas
2021 Latest Caselaw 20003 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 24TH DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943
                   OP (FC) NO. 398 OF 2021
  AGAINST THE ORDER/JUDGMENT IN O.P.No.560/2019 OF FAMILY
                    COURT, PALA, KOTTAYAM
PETITIONER/S:

          MARIAKUTTY JOSEPH, AGED 79 YEARS,
          W/O.LATE JOSEPH, ITTANKULANGARA HOUSE,
          KURUMULLOOR P.O, KANAKADY,
          KOTTAYAM DISTRICT, PIN - 686632.
          BY ADVS.
          P.B.KRISHNAN
          SABU GEORGE
          B.ANUSREE
          MANU VYASAN PETER


RESPONDENT/S:

    1     SINDHU THOMAS, AGED ABOUT 48 YEARS,
          D/O.K.V.THOMAS, KADAMTHOTTU HOUSE,
          PUZHAVATH KARA, CHANGANACHERRY P.O,
          KOTTAYAM DISTRICT, PIN - 686101.
    2     ANTONY JOSEPH, W/O. LATE JOSEPH,
          ITTANKULANGARA HOUSE, KURUMULLOOR P.O,
          KANAKARY, KOTTAYAM DISTRICT,
          PIN - 686632.
          BY ADVS.
          ABU MATHEW
          AJU MATHEW


THIS OP (FAMILY   COURT) HAVING COME UP FOR ADMISSION ON
24.09.2021, THE   COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP (FC) No.398/2021            2



                            JUDGMENT

A.Muhamed Mustaque, J.

The petitioner, in this case, is the second respondent in

O.P.No.560 of 2019 on the file of the Family Court, Pala. The first

respondent herein is the petitioner in the above case. The second

respondent herein is the first respondent in the above case.

2. The first respondent herein filed the petition for the

recovery of gold ornaments or its value. In that an interlocutory

application was filed for attachment before judgment. The Family

Court on 31.8.2019, passed a conditional order. Thereafter, the

petitioner herein who is the second respondent in the matter filed

a petition under Order XXXVIII Rule 9 of the Civil Procedure Code

(for short, 'CPC') to release the attached property. The Family

Court passed a detailed order dismissing the petition under Order

XXXVIII Rule 9 of the CPC on 30.3.2021. This order is under

challenge in this case.

3. It is to be noted that the first respondent herein raised an

objection for lifting the conditional attachment. Ext.P8 is the said

objection.

4. Though in this original petition, the challenge was in

respect of an order passed under Order XXXVIII Rule 9 of the

CPC, it was brought to our notice on the last occasion by the

learned senior counsel appearing for the petitioner that the Family

Court made attachment order absolute without passing a reasoned

order and without adverting to the objection raised by the

petitioner. Accordingly, we called for a report from the Family

Court, Pala. The report along with orders passed are placed before

us. As seen from the order, a final order has been passed in the

attachment application on 10.09.2021 without adverting to the

objections raised by the petitioner or any other objection, if any,

raised by the second respondent herein.

5. First, we shall advert to the impugned order, in this

case, passed under Order XXXVIII Rule 9 of the CPC. The order

XXXVIII Rule 9 reads thus:

"Removal of attachment when security furnished or suit dismissed:

Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the cost of the attachment, or when the suit is dismissed."

6. The operation of Order XXXVIII Rule 9 of the CPC would

come into play only when there is an attachment and the

defendant against whom the attachment is made, seeks to lift the

attachment on furnishing security.

7. The petitioner approached this Court even before the

attachment order has been made absolute. The court below also

considered the petition under Order XXXVIII Rule 9 of the CPC

even before passing the final order in the attachment application.

The impugned order is dated 30.03.2021. The final order in the

attachment petition has been passed only on 10.09.2021.

In the light of the facts aforenoted, we are of the view that

the Family Court require to consider the objection of the petitioner

as against conditional attachment at the first instance. It is only

after adverting to the objection, the attachment can be made

absolute. Thereafter, if attachment is made out absolute, the

consideration of an application under Order XXXVIII Rule 9 of the

CPC would arise for consideration. The procedure adopted by the

Family court according to us is irregular. Though the order dated

10.9.2021 is not under challenge, we exercise our supervisory

power under Article 227 of the Constitution and interfere with

such order for the reason that grave irregularity has been

committed by the Family Court passing such order on 10.09.2021

without adverting to the objection raised by the parties. By a

cryptic order, attachment has been made absolute. We, therefore,

set aside the order dated 10.09.2021. We also set aside the

impugned order dated 30.03.2021 under Order XXXVIII Rule 9 of

the CPC. We direct the Family Court to pass a reasoned order

under Order XXXVIII Rule 6 of the CPC after adverting to the

objections of the parties. If the final order has been passed and

attachment is made absolute, the Family Court can take up the

petition under Order XXXVIII Rule 9 of the CPC. The proceedings

forwarded before this Court by the Family Court shall form part of

the record. Till further orders are issued, the conditional

attachment already issued in the matter will continue. We direct

the Family Court to pass appropriate orders within six weeks.

The original petition is disposed of as above.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

DR. KAUSER EDAPPAGATH, JUDGE

ln

APPENDIX OF OP (FC) 398/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORIGINAL PETITION DATED 30.08.2019 BEARING OP.NO. 560 OF 2019 ON THE FILE OF THE FAMILY COURT, PALA.

EXHIBIT P2 TRUE COPY OF THE I.A.NO.950 OF 2019 IN OP.NO.560 OF 2019 ON THE FILE OF THE FAMILY COURT, PALA, DATED 30.08.2019.

EXHIBIT P3 TRUE COPY OF THE COUNTER-AFFIDAVIT DATED 25.11.2019 IN I.A.NO.950 OF 2019 IN OP NO.560 OF 2019 ON THE FILE OF THE FAMILY COURT, PALA.

EXHIBIT P4 TRUE COPY OF THE ORDER DATED 16.08.2019 IN C.M.P NO. 2760/2019 IN M.C NO.60/2019 ON THE FILE OF THE JFMC - I, CHANGANACHERRY.

EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 02.09.2019 IN IA NO.950/2019 IN OP.NO.560/2019 ON THE FILE OF THE FAMILY COURT, PALA.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 31.08.2019 IN I.A.NO.950/2019 IN OP.NO.560/2019 ON THE FILE OF THE FAMILY COURT, PALA.

EXHIBIT P7 TRUE COPY OF THE IA.NO.1274/2019 DATED NIL IN OP NO.560 OF 2019 ON THE FILE OF THE FAMILY COURT, PALA.

EXHIBIT P8 TRUE COPY OF THE COUNTER-AFFIDAVIT DATED 18.12.2019 IN IA.NO.11274 OF 2019 IN OP.NO.560 OF 2019 ON THE FILE ON THE FAMILY COURT, PALA.

EXHIBIT P9 TRUE COPY OF RECEIPT DATED 27.11.2019 ISSUED BY THE SHERISTADAR, FAMILY COURT, PALA. EXHIBIT P10 TRUE COPY OF THE MEMO DATED 27.11.2019 IN OP.NO.560 OF 2019 ON THE FILE OF THE FAMILY COURT, PALA.

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 30.03.202 IN IA NO. 1274 OF 2019 IN OP.NO.560 OF 2019 ON THE FILE OF THE FAMILY COURT, PALA.