Kerala High Court
Hyderali vs Farshana on 5 September, 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
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
OP (FC) NO. 260 OF 2024
AGAINST THE ORDER DATED 05.02.2024 IN E.A.3/2023 IN EP NO.77
OF 2022 OF FAMILY COURT, MALAPPURAM ARISING OUT OF THE JUDGMENT
DATED 16.10.2020 IN OP NO.501 OF 2018 OF FAMILY COURT, MALAPPURAM
PETITIONER/PETITIONER/JUDGMENT DEBTOR/RESPONDET 2:
HYDERALI, AGED 71 YEARS
APSOTAG HOUSE, MAMPAD POST, MEPPADAM, NILAMBUR,
MALAPPURAM, PIN - 676542
THAREEQ ANVER K.
K.SALMA JENNATH
K.C.KHAMARUNNISA
K.SHAMSUDHEEN
ARUN CHAND
RASSAL JANARDHANAN A.
GOVIND G. NAIR
MOYIN K.P.
RESPONDENT/RESPONDENT/DECREE HOLDER/PETITIONER 1:
FARSHANA, AGED 26 YEARS
D/O SHOUKATHALI, PUTHANPEEDIKA HOUSE, CHENGARA,
KARAPARAMBU, IRUVETTY POST, ERNAD, MALAPPURAM - 673639
T.K.AJITH KUMAR
REMYA VARMA N.K(K/001085/2021)
VARNIBHA.T(K/002119/2021)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
05.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (FC) NO. 260 OF 2024
2
JUDGMENT
Devan Ramachandran, J.
The petitioner assails Ext.P11 order of the learned Family
Court, Malappuram, whereby, his request for selling 1 Acre 15
cents of land, instead of the now proclaimed extent of 15 cents,
has been rejected.
2. Sri.Thareeq Anver, appearing for the petitioner,
submitted that his client has already deposited more than
Rs.5,00,000/- pursuant to the interim order of this Court, but
conceding that the total amount due from him is Rs.15,00,000/-
and odd, as per the decree. He explained that his client intends to
pay off the entire amount, but that he has been incapacitated from
doing so because all his properties stand attached by the learned
Family Court. He says that he has, therefore, preferred Ext.P13
application before the said Court, requesting that the attachment
over 1 Acre 15 cents of land be lifted, so that he can either
mortgage the same with a Bank and obtain money; or sell it
through a private sale and find resources. He alleges that,
however, the learned Family Court has not even considered
Ext.P13, but is proceeding further with the sale of 15 cents of
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OP (FC) NO. 260 OF 2024
land, which he says would destroy his client because, he has no
other place to live in.
3. In response to the afore submissions, Smt.Remya
Varma N.K. - appearing for the respondent, submitted that the
attempt of the petitioner, in moving Ext.P13, is only to protract
the execution proceedings and nothing else. She pointed out that
the matter arises out of an Original Petition filed by her client in
the year 2018 and that she has been awaiting justice for the last
more than six years. She alleged that the petitioner has now filed
Ext.P13 solely to delay proceedings because, the matter is at the
last stage, where the Court has proclaimed a property for sale, for
realisation of the entire amount under the decree. She, however,
conceded that, if the petitioner's intentions are honourable and if
this Court is inclined to grant him any latitude, then it may be
ensuring that the entire balance amount as per decree is obtained
by her client not later than 90 days. She also sought permission
to withdraw the amounts deposited by the petitioner before the
Trial Court, as per the interim order of this Court.
4. Sri.Thareeq Anver, appearing for the petitioner,
agreed to the afore course; and prayed that appropriate orders be
issued by this Court.
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5. When we examine Ext.P13 application, it is evident
that the petitioner seeks lifting the attachment of his property for
the purpose of mortgaging or selling the same. Obviously, it is not
possible for any Court to accede to this request upfront, without
having necessary protection in place in favour of the respondent.
6. Perhaps, the petitioner can approach the Bank and
obtain "in-principle clearance" showing the manner in which the
money will be paid into the Court, so that the document can then
be released directly to it, which of course will require necessary
consents from the petitioner also. It may also be possible for the
petitioner to find a buyer for the property, who can then pay the
money to the Court and then obtain release of the title documents
in his favour. This again, would require necessary arrangements
to be made by the petitioner.
7. We, therefore, are of the view that, if the petitioner is
agreeable to any of the afore, then he can approach the learned
Family Court appropriately and obtain relief; but ensuring that the
final amounts under the decree are obtained not later than 90
days from the date of receipt of a copy of this judgment.
8. In the afore circumstances, we allow this Original
Petition to the limited extent of directing the learned Family
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Court, Malappuram, to take up Ext.P13 application of the
petitioner and decide the same, adverting specifically to our
observations above; thus culminating in an appropriate order
thereon as expeditiously as is possible.
In order to enable the afore, we direct that all further
action for sale of the property now proclaimed shall stand
deferred for a period of 90 days from the date of receipt of a copy
of this judgment; but, if within the said time, the entire amount is
not paid by the petitioner, adopting any of the above alternatives,
then the learned Family Court will be at full liberty to continue
with the execution proceedings from the stage at which it is
available today, without having to obtain any further orders from
this Court. We record that the afore course has been expressly
agreed to by the petitioner, through his learned counsel.
Sd/- DEVAN RAMACHANDRAN
JUDGE
Sd/- M.B. SNEHALATHA
JUDGE
stu
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OP (FC) NO. 260 OF 2024
APPENDIX OF OP (FC) 260/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF ORDER AND DECREE DATED
16/10/2020 IN O.P. NO.501/2018 BEFORE THE
FAMILY COURT, MALAPPURAM
Exhibit P2 THE TRUE COPY OF E.P. NO.77/2022 FILED BY THE
1ST RESPONDENT IN FAMILY COURT, MALAPPURAM ON
13/12/2022
Exhibit P3 THE TRUE COPY OF THE JUDGMENT DATED
25/05/2023 IN OP(FC) 219/2023 BEFORE THIS
HON'BLE COURT
Exhibit P4 THE TRUE COPY OF THE JUDGMENT DATED
21/06/2023 IN OP(FC) 370/2023 BEFORE THIS
HON'BLE COURT
Exhibit P5 THE TRUE COPY OF THE JUDGMENT DATED
16/10/2023 IN MAT. APP. 741/2023 ON THE FILES
OF THIS HON'BLE COURT
Exhibit P6 THE TRUE COPY OF THE PROCLAMATION DATED
13/03/2024 IN E.P. NO.77/2022 IN O.P.
NO.501/2018 BEFORE THE FAMILY COURT,
MALAPPURAM
Exhibit P7 THE TRUE COPY OF A VALUATION REPORT MADE BY A
REGISTERED VALUER ON 21/03/2024 AS TO THE
PROPERTIES UNDER ATTACHMENT
Exhibit P8 THE TRUE COPY OF THE ORDER DATED 05/02/2024
IN E.A. 01/2023 IN E.P. NO.77/2022 IN O.P.
NO.501/2018 BEFORE THE FAMILY COURT,
MALAPPURAM
Exhibit P9 THE TRUE COPY OF THE APPLICATION DATED
11/12/2023 MADE BY THE PETITIONER AND
SUBSEQUENTLY NUMBERED AS EA 3/2023 IN E.P.
NO.77/2022 IN O.P. NO.501/2018 BEFORE THE
FAMILY COURT, MALAPPURAM
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OP (FC) NO. 260 OF 2024
Exhibit P10 THE TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENT ON 02/01/2024 AGAINST EA 3/2023 IN
E.P. NO.77/2022 IN O.P. NO.501/2018 BEFORE
THE FAMILY COURT, MALAPPURAM
Exhibit P11 THE TRUE COPY OF THE ORDER DATED 05/02/2024
IN EA 3/2023 IN E.P. NO.77/2022 IN O.P.
NO.501/2018 BEFORE THE FAMILY COURT,
MALAPPURAM
Exhibit P12 THE TRUE COPY OF THE ORDER DATED 26/12/2022
IN E.A. 2/2022 IN E.P. 77/2022 IN O.S.
501/2018 OF THE HON'BLE FAMILY COURT,
MALAPPURAM
Exhibit P13 THE TRUE COPY OF THE APPLICATION DATED
27/06/2024 SUBMITTED BY THE PETITIONER IN
E.P. 77/2022 IN O.S. 501/2018 BEFORE THE
HON'BLE FAMILY COURT
