Salma Beevi vs Sheeja
2023 Latest Caselaw 671 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                             &
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                  O.P.(FC) NO. 17 OF 2023


PETITIONER:

          SALMA BEEVI
          AGED 69 YEARS
          W/O. ISMAIL RAWTHER,
          ALINTE THEKKETHIL HOUSE,
          VETTIYAR, MANGAKUZHY P.O.,
          MAVELIKKARA, ALAPPUZHA, PIN - 690558.
          BY ADVS.
          K.R.VINOD
          M.S.LETHA
          NABIL KHADER
          CHITHRA C.EDADAN


RESPONDENTS:

    1     SHEEJA
          AGED 38 YEARS
          D/O. MUHAMEMD ALI,
          PLAVILA, RAMALLOOR COLONY,
          VETTIYAR MURI, MANKAMKUZHI P.O.,
          MAVELIKKARA, ALAPPUZHA, PIN - 690558.
                                2
O.P.(FC) No.17 of 2023


     2       NIZAR,
             AGED 55 YEARS,
             S/O. ISMAIL RAWTHER, ALINTE THEKKATHIL,
             VETTIYAR, MANGAKUZHY P.O.,
             MAVELIKKARA, ALAPPUZHA, PIN - 690558.



         THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                3
O.P.(FC) No.17 of 2023


                          JUDGMENT

P.G.Ajithkumar, J.

O.P.No.242 of 2015 was filed before the Family Court,

Mavelikkara by the 1st respondent seeking return of gold

ornaments and realisation of money from the 2 nd respondent.

That O.P. was decreed. The 1st respondent filed E.P.No.65 of

2016. In execution of the said decree, an extent of 10.5 cents

of land comprised in Re-survey No.290/20 in block No.6 of

Vettiyar Village, Mavelikkara was attached. The petitioner filed

E.A.No.156 of 2018 in that Execution Petition under Order

XXI, Rule 58 of the Code of Civil Procedure, 1908, claiming

that she has life interest in the property, and therefore the

same could not be sold in auction. The Family Court,

Mavelikkara as per Ext.P2 order dismissed E.A.No.156 of

2018. However, it was held that the sale of the property shall

be subject to the life interest of the petitioner in the said

property. The petitioner has filed this Original Petition under

Article 227 of the Constitution of India seeking to set aside

Ext.P4 sale proclamation stating that 5 cents out of the

O.P.(FC) No.17 of 2023

aforesaid 10.5 cents of property is proclaimed for sale without

showing in the proclamation schedule the life interest of the

petitioner over the property.

2. Heard the learned counsel appearing for the

petitioner in detail.

3. Ext.P3 is the order of the Family Court, Mavelikkara

dated 22.11.2022 ordering to proclaim the sale of undivided

interest of the judgment debtor over 5 cents out of the

aforesaid 10.5 cents of land in execution of the decree in

O.P.No.242 of 2015. The grievance of the petitioner is that

since the right of the petitioner to enjoy the property during

her lifetime is not shown in the proclamation schedule, there

is every possibility of causing prejudice to her right, especially

if any third party purchases the property.

4. The petitioner is not a party to the execution

proceedings. Her interest is safeguarded as per Ext.P2 order.

In the proclamation schedule, Ext.P4, it has been stated that

undivided right of the 2nd respondent-judgment debtor in the

property will be put on sale. A purchaser will get the right of

O.P.(FC) No.17 of 2023

the judgment debtor in the property alone. If that right is

subject to the life interest of the petitioner, the same will not

be affected by such sale. At this interim stage of the execution

proceedings, it is not available for the petitioner who is a third

party to invoke the provisions of Article 227 of the

Constitution of India to challenge the proceedings in the

Execution Petition. As the matters stand, the petitioner has no

reason to challenge the execution proceedings. In such

circumstances, we are of the view that this Original Petition

does not merit consideration and therefore the same is

dismissed without making any observation on the merits of

the contentions put forward by the petitioner.

Sd/-

ANIL K. NARENDRAN, JUDGE

Sd/-

P.G. AJITHKUMAR, JUDGE dkr

O.P.(FC) No.17 of 2023

APPENDIX OF OP (FC) 17/2023

PETITIONER EXHIBITS EXHIBIT P1 THE COPY OF THE SETTLEMENT DEED NO.1238/2004 OF SRO MAVELIKKARA EXHIBIT P2 THE COPY OF THE ORDER IN E.A.NO.156/2018 DATED 10.08.2020 OF FAMILY COURT, MAVELIKKARA EXHIBIT P3 THE COPY OF THE ORDER OF SALE DATED 22.11.2022 OF FAMILY COURT, MAVELIKKARA EXHIBIT P4 THE COPY OF THE SALE PROCLAMATION PUBLISHED BY THE ORDER OF THE FAMILY COURT, MAVELIKKARA DATED 29.12.2022