Kerala High Court
Shereena vs Ummer on 1 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Wednesday, the 1st day of February 2023 / 12th Magha, 1944
IA.NO.1/2022 IN MAT.APPEAL NO. 449 OF 2021
OP 420/2015 OF FAMILY COURT, OTTAPALAM, PALAKKAD
PETITIONER/RESPONDENT:
UMMER, AGED 50 YEARS, S/O.LATE HYDROSE, PARANTHODAN HOUSE,
PULAMANTHOLE P.O, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT -
679323.
RESPONDENT/APPELLANT:
SHEREENA, AGED 35 YEARS, D/O. AKBAR, CHERUVASSERY PALLIYALIL HOUSE,
NELLAYA P.O, OTTAPALAM TALUK, PALAKKAD DISTRICT - 679335.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to remove the
restraint in the order dated 27/8/2021 in I.A.No.1/2021 in Mat.Appeal
No.449/2021 by accepting cash security or bank guarantee for
Rs.10,00,000/- from the petitioner/respondent.
This Application coming on for orders, upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of MR.A.HAROON RASHEED, Advocate for the applicant, and of MR.P.JAYARAM,
Advocate for the respondent, the court passed the following:
P.T.O.
ANIL K. NARENDRAN & P.G. AJITHKUMAR, JJ.
-----------------------------------------------------------
I.A.No.1 of 2022
in
Mat.Appeal No.449 of 2021
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Dated this the 1st day of February, 2023
ORDER
P.G. Ajithkumar, J.
The respondent in the appeal has filed this petition
under Order XXXVIII, Rule 9 of the Code of Civil Procedure,
1908. He seeks to remove the order restraining him from
alienating, transferring or encumbering the scheduled
property, which this Court has ordered on 27.08.2021 in
I.A.No.1 of 2021. He offers to furnish cash security or bank
guarantee for Rs.10 lakhs for withdrawing the said order.
2. The respondent filed a counter-affidavit. She would
contend that the claim in the original petition was to return of
50 sovereigns of gold ornaments. The present value of 50
sovereigns will come to Rs.20 lakhs. The costs of the litigation
would be Rs.5 lakhs. Further, she is entitled to get Rs.2 lakhs
towards arrears of maintenance, which was ordered in
I.A.No.1 of 2022 in
Mat.Appeal No.449 of 2021
M.C.No.126 of 2015. In such circumstances, furnishing
security for Rs.10 lakhs is insufficient. For such reasons the
respondent seeks to dismiss the petition.
3. Heard the learned counsel appearing for the
petitioner and the learned counsel appearing for the
respondent.
4. O.P.No.420 of 2015 was filed by the respondent
claiming recovery of 50 sovereigns of gold ornaments from
the petitioner. As an alternative prayer the cost of the gold
ornaments was claimed. The Family Court, after considering
the rival contentions and the evidence, dismissed O.P.No.420
of 2015. The Family Court held that the evidence let in by the
respondent was insufficient to prove that she had 50
sovereigns of gold ornaments at the time of her marriage with
the petitioner. It was also held that non-production of any
document regarding purchase of gold ornaments
improbabilised the case of the respondent. She assails the
said findings in the appeal. She would contend that there is
every likelihood of allowing the appeal and in the event of
I.A.No.1 of 2022 in
Mat.Appeal No.449 of 2021
decreeing O.P.No.420 of 2015, the decreetal amount, being
the value of 50 sovereigns of gold ornaments, would be more
than Rs.20 lakhs. She would be entitled to realise the costs as
well.
5. The claim of the respondent was rejected by the
Family Court in toto. Detailed reasons to reject the claim have
been stated in the impugned judgment. Whether those
reasons would stand scrutiny in this appeal by itself would not
entitle the respondent to insist on furnishing security for her
entire claim in O.P.No.420 of 2015. The petitioner would
contend that on account of the restraint order, he is unable to
meet several of his obligations. When he contends that he is
prepared to furnish security and only on accepting such
security, the restraint order need to be removed, it cannot be
said that he lacks bona fides.
6. Considering all such aspects, we are of the view
that the restraint order dated 27.08.2021 in I.A.No.1 of 2021
in this appeal can be withdrawn, if the petitioner furnishes
security by way of cash deposit or bank guarantee for an
I.A.No.1 of 2022 in
Mat.Appeal No.449 of 2021
amount of Rs.15,00,000/- (Rupees fifteen lakhs only). The
petition is ordered accordingly.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
01-02-2023 /True Copy/ Assistant Registrar
