Kerala High Court
Justine @ Joseph vs Mareena George on 29 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 29TH DAY OF JUNE 2022 / 8TH ASHADHA, 1944
OP (FC) NO. 261 OF 2021
E.A.NO.5 OF 2021 AND E.A.NO.6 OF 2021 IN E.P.NO.3 OF 2016 IN
OP 1164/2010 OF FAMILY COURT, PALA
PETITIONERS/PETITIONERS/JUDGMENT DEBTORS/RESPONDENTS:
1 JUSTINE @ JOSEPH,
AGED 38 YEARS,
S/O. MATHEW, VALIYAPAIKATTU HOUSE, ULLANAD P.O.
BHARANANGANAM VILLAGE, MEENACHIL TALUK, KOTTAYAM 686
651.
2 MATHEW,
AGED 69 YEARS,
VALIYAPAIKATTU HOUSE, ULLANAD P.O., BHARANANGANAM
VILLAGE, MEENACHIL TALUK, KOTTAYAM, PIN- 686 651.
3 GRACY MATHEW,
AGED 63 YEARS,
W/O. MATHEW,
VALIYAPAIKATTU HOUSE, ULLANAD P.O., BHARANANGANAM
VILLAGE, MEENACHIL TALUK, KOTTAYAM, PIN-686 651.
BY ADVS.
SEBASTIAN CHAMPAPPILLY
DR.ABRAHAM P.MEACHINKARA
SRI.GEORGE CLEETUS
SRI.P.A.SAINUDEEN
SMT.MARGARET MAUREEN DROSE
RESPONDENT/RESPONDENT/DECREE HOLDER/PETITIONER:
MAREENA GEORGE, AGED 34 YEARS,
D/O. GEORGEKUTTY, PAIKADA HOUSE, KONIPPADU P.O.
MELUKAVU VILLAGE, KOTTAYAM DISTRICT, PIN- 686 652.
BY ADVS.
SMT.K.SUNITHA VINOD
SMT.KALYANI.S.VINOD
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(FC)No.261 OF 2021 2
JUDGMENT
A.Muhamed Mustaque, J.
This original petition was filed challenging an order dated
24.03.2021 to execute the decree to recover gold ornaments and
other reliefs granted in the decree. The decretal portion reads
thus:
"(a) The respondents are directed to return
Rs.8,70,601/- to the petitioner, wife within one month from
today and in default that amount will carry interest at the
rate of 9% from the date of decree till realisation.
(b) The respondents are directed to return 53
sovereigns of gold ornaments or its equivalent value
Rs.12,72,000/- (@ of Rs.24,000/- per sovereign) to the
petitioner/wife within one month from today and in default
that amount will carry interest at the rate of 9% from the
date of decree till realisation.
(c) The respondents are directed to return the
almirah and dress or its equivalent value Rs.70,000/- to the
petitioner/wife within one month from today and in default
that amount will carry interest at the rate of 9% from the
date of decree till realisation."
2. The impugned order in this case is regarding the amount
to be recovered from the judgment debtors-the petitioners herein
in terms of the decree. It is to be noted that there was an appeal
against the decree. The appeal was dismissed by the Division
Bench on 26.07.2019. The matter was carried to the Apex Court.
The SLP was dismissed on 05.02.2021. Thereafter, the
petitioners herein filed a review petition before this Court. The
review was partly allowed on 17.05.2022.
3. According to the petitioners, they were prepared to
return the gold ornaments and therefore, they cannot be mulcted
with a default clause, in the event of failure to return the gold
ornaments as directed in decree.
4. It is admitted that the review petition was disposed of
only on 17.05.2022 and therefore, their offer to return the gold
ornaments has to be taken as within time. It is to be noted that
the impugned order was passed on 24.03.2021. The Execution
Court had no occasion to consider the impact of the order in the
review petition. If the order of the Family Court is merged with
the ultimate order passed in the appeal or review as the case
may be, the period for compliance of the decree will have to be
reckoned with reference to the date on which the said appeal or
review has been disposed of. So the default clause on non-return
of gold ornaments will have to be taken into account with
reference to the date on which the appeal or review has been
disposed of. We leave open this matter to be considered by the
Execution Court afresh. We also delegate the Family Court, Pala,
to reconsider all other objections with regard to the satisfaction of
the decree, afresh. The Family Court, Pala, is directed to consider
the objections as above within a period six weeks. The
attachment already effected will continue till further decision is
taken in this matter by the Execution Court.
This original petition is disposed of.
Sd/-
A.MUHAMED MUSTAQUE,
JUDGE
Sd/-
SOPHY THOMAS,
JUDGE
DSV/29.06.2022
APPENDIX OF OP (FC) 261/2021
PETITIONERS' EXHIBITS :
EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED
23.11.2015 IN O.P.( F.C.) NO. 523 OF
2015.
EXHIBIT P2 TRUE COPY OF E.P. NO. 3 OF 2016 DATED
16.1.2016.
EXHIBIT P3 TRUE COPY OF THE ORDER OF STAY OF THE
EXECUTION PROCEEDINGS PASSED IN I.A. NO.
977 OF 2016 IN MAT. APPEAL NO. 173 OF
2013 DATED 31.5.2016.
EXHIBIT P4 TRUE COPY OF JUDGMENT IN MAT. APPEAL NO.
173 OF 2013 DATED 26.7.2019.
EXHIBIT P5 TRUE COPY OF THE PRINT OUT OF ORDER AS
AVAILABLE ON THE WEBSITE OF THE HONBLE
SUPREME COURT IN DIARY NO. 4489 OF 2020
DATED 5.2.2021.
EXHIBIT P6 TRUE COPY OF R.P. NO. 175 OF 2021 DATED
19.2.2021.
EXHIBIT P7 TRUE COPY OF BALANCE STATEMENT DATED
27.2.2201 FILED IN E.P. NO. 3 OF 2016.
EXHIBIT P8 TRUE COPY OF E.A. NO. 5 OF 2021 DATED
19.3.2201 FILED BY THE PETITIONERS
BEFORE THE FAMILY COURT, PALA.
EXHIBIT P9 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT DATED 22.3.2021.
EXHIBIT P10 TRUE COPY OF THE ORDER DATED 24.3.2021
IN E.A. NO. 5 OF 2021 IN E.P. NO. 3 OF
2016 OF FAMILY COURT PALA.
EXHIBIT P11 TRUE COPY OF E.A. NO. 6 OF 2021 IN E.P.
NO. 3 OF 2016 IN O.P. NO. 1164 OF 2010
DATED 31.3.2021.
EXHIBIT P12 COPY OF THE DECREE DATED 01.12.2012 IN
O.P.NO.1164 OF 2010 OF THE HON'BLE
FAMILY COURT, KOTTAYAM AT ETTUMANOOR.
EXHIBIT P13 COPY OF THE ORDER DATED 31.05.2016 IN
I.A.NO.977 OF 2016 IN MAT.APPEAL NO.173
OF 2013.
EXHIBIT P14 COPY OF THE CHALAN BEARING NO.0903 DATED
30.11.2016.
EXHIBIT P15 COPY OF THE ORDER IN R.P.NO.175 OF 2021
DATED 17.05.2022.
RESPONDENT'S EXHIBITS : NIL
