Kerala High Court
Ammini Cheriyan vs Beena Rajeev @ Annama on 25 October, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
OP (FC) NO. 73 OF 2024
AGAINST THE ORDER IN OP NO.719 OF 2022 OF FAMILY COURT,
THIRUVALLA
PETITIONER/RESPONDENT:
AMMINI CHERIYAN, AGED 80 YEARS
W/O LATE K.A. CHERIYAN KODUMULAYIL HOUSE, THUKLASSERY
MURI, THIRUVALLA P.O, THIRUVALLA VILLAGE,
PATHANAMTHITTA DISTRICT, PIN - 689101
DENU JOSEPH
MANJU M.K.
MUHISEENA.V.Z
RESPONDENT/PETITIONER:
BEENA RAJEEV @ ANNAMA, AGED 52 YEARS
W/O LATE RAJEEV CHERIYAN @ RAJEEV CHERIYAN
KODAUMULAYAIL HOUSE, THUKLASSERY MURI, THRIUVALLA P.O.,
THIRUVALLA VILLAGE, PATHANAMTHITTA DISTRICT,
REPRESENTED BY POWER OF ATTORNEY VILLAGE HOLDER, ALEX
PANIKER, AGED 55 YEARS, S/O JOSEPH PANIKER
ADANGAPPURATHU HOUSE MADATHUMBHAGAM NORTH, KALLOOPPARA
VILLAGE, KALLOOPPARA MURI, MALLAPPALLY, PIN - 689584
ARUN THOMAS
LEAH RACHEL NINAN(K/002325/2019)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
25.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (FC) NO. 73 OF 2024
2
JUDGMENT
Devan Ramachandran, J.
The petitioner is stated to be the mother in law of the
respondent and assails Ext.P5 order, through which, allegedly,
she has been injuncted from selling a property; and the same has
been attached also.
2. Sri.Denu Joseph - appearing for the petitioner, tried
to impress upon us that the allegations in the original petition,
filed by the respondent, are factually incorrect and wrong; and
therefore, that the Trial Court ought not to have issued Ext.P5
order.
3. However, in response, Sri.Arun Thomas - appearing
for the respondent, submitted that Ext.P5 only attaches the
property of the petitioner before judgment, under the provisions
of the Code of Civil Procedure (CPC); and that the injunction
order therein does not impair her capacity to sell, but seeks to
ensure that his client is not dispossessed from the property. He,
therefore, prayed that Ext.P5 be set aside.
4. We have examined Ext.P5 and we notice, as conceded
by both sides, that it is, in fact, an order issued under both Order
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OP (FC) NO. 73 OF 2024
38 Rule 5 of the CPC and Order 39 Rule 1 thereof. This is
because, as regards the property, the learned Trial Court has
ordered an attachment before judgment against the petitioner
based on the claim impelled by the respondent in the original
petition; while, finding that the latter is staying in the house, an
injunction has been issued against the petitioner from
dispossessing her.
5. Obviously, therefore, the arguments of Sri.Denu
Joseph, that Ext.P5 imposes restrictions on the petitioner to sell
the property, do not appear to be correct. It is also well settled
that an order of attachment will not inhibit the owner from
selling the property, but that it will be subject to such; and that
the respondent can enforce it against any other person who
claims title in future.
6. Sri.Denu Joseph - learned counsel for the petitioner,
at this time, intervened to say that his client, therefore, will
agree that the order of attachment continues on the property,
but that she be given the right to settle it in favour of her
daughter, since she does not want to keep it in her name, due to
her advanced age. He also conceded that, as regards the
dispossession of the respondent, if she is still in possession, then
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OP (FC) NO. 73 OF 2024
it will be done only after obtaining necessary orders from the
Trial Court.
7. Sri.Arun Thomas - learned counsel for the
respondent, acceded to the afore.
In the afore circumstances, we dismiss this original
petition, confirming Ext.P5; however, clarifying that the order of
attachment over the property will not inhibit the petitioner from
settling it in favour of her daughter as she wants; but that any
such will be subject to the rigor of the attachment and will run
along with the property.
Sd/- DEVAN RAMACHANDRAN
JUDGE
Sd/- M.B. SNEHALATHA
JUDGE
stu
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OP (FC) NO. 73 OF 2024
APPENDIX OF OP (FC) 73/2024
PETITIONER EXHIBITS
Exhibit.P1 THE TRUE COPY OF TH I.A.NO. 2/2022 IN
O.P.NO.719/2022 DATED 27/12/2022 OF THE
FAMILY COURT, THIRUVALLA
Exhibit.P2 THE TRUE COPY OF I.A.NO. 3/2022 IN O.P.NO.
719/2022 DATED 27/12/2022 OF THE FAMILY
COURT, THIRUVALLA
Exhibit.P3 THE TRUE COPY OF COUNTER AFFIDAVIT I.A.NO.
2/2022 IN O.P.NO. 719/2022 DATED 16/06/2023
OF THE FAMILY COURT, THIRUVALLA
Exhibit.P4 THE COPY OF COUNTER IN I.A.NO. 3/2022 IN
O.P.NO. 719/2022 DATED 16/06/2023 OF THE
FAMILY COURT, THIRUVALLA
Exhibit.P5 THE TRUE COPIES OF THE COMMON ORDERS IN I.A
2/2022 AND I.A.NO. 3/2022 IN O.P.NO.
719/2022 DATED 12.10.2023 OF THE FAMILY
COURT, THIRUVALLA
Exhibit.P6 THE TRUE COPY OF THE WILL DEED NO. 94/2009
Exhibit.P7 THE TRUE COPY OF THE WILL DEED NO. 105/2013
Exhibit.P8 THE TRUE COPY OF THE WILL DEED NO. 339/2016
Exhibit.P9 THE TRUE COPY OF O.P. NO. 719/2022 BEFORE
THE FAMILY COURT , THIRUVALLA
