[Cites 1, Cited by 0]
Kerala High Court
V. Latha vs Rajeswari on 1 December, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:92741
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
MONDAY, THE 1ST DAY OF DECEMBER 2025 / 10TH AGRAHAYANA, 1947
MA (EXE.) NO. 12 OF 2025
AGAINST THE ORDER IN E.A.69/2024 IN EP NO.34 OF 2010 OF
FAMILY COURT, KOLLAM
APPELLANT/CLAIM PETITIONER:
V. LATHA, AGED 63 YEARS, W/O. RAJEEV KUMAR,
SNEHALAYAM, AMBIPOIKA P.O. PERUMPUZHA,
KOTTAMKARA VILLAGE, KOLLAM TALUK
KOLLAM DISTRICT, PIN - 691501
BY ADVS.
SRI.T.R.RAJAN
SHRI.ANOOJ.J
RESPONDENTS/RESPONDENTS:
1 RAJESWARI, AGED 53 YEARS, W/O. HARILAL,
AMBIKA SADANAM, MARANADU, PUTHOOR VILLAGE,
MARANADU MURI, PUTHOOR, KOTTARAKKARA.
KOLLAM, PIN - 691505
2 ASWATHY LAL, AGED 24 YEARS, D/O. RAJESWARI,
AMBIKA SADANAM, MARANADU MURI, PUTHOOR,
KOTTARAKKARA. KOLLAM DISTRICT., PIN - 691505
3 ASWIN LAL, AGED 20 YEARS, S/O. RAJESWARI,
AMBIKA SADANAM, MARANADU, PUTHOOR.
KOTTARAKKARA. KOLLAM DISTRICT,
PIN - 691505
4 HARILAL, AGED 56 YEARS, S/O.LATE SIVANANDAN,
MINI SADANAM, THAZHATHU MURI, EAST KALLADA,
KOLLAM DISTRICT, PIN - 691502
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2
BY ADVS.
SRI.K.V.ANIL KUMAR
SMT.RADHIKA S.ANIL
SHRI.NIJAZ JALEEL
SHRI.NEERAJ S.
THIS MAT APPEAL (EXECUTION) HAVING COME UP FOR
ADMISSION ON 01.12.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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3
JUDGMENT
Devan Ramachandran, J.
The appellant assails the order of the learned Family Court,
Kollam, in E.A.No.69/2024 in E.P.No.34/2010.
2. Concededly, respondents 1 to 3 herein obtained a decree
against the 4th respondent in O.P.No.19/2006 and levied execution by
filing E.P.No.34/2010. It is also admitted that the property in
question was attached by the learned Family Court on their
application.
3. On the assertion that she came to be aware of the
attachment much later and at the time when the sale proclamation
was affixed on the property, the appellant filed E.A.No.69/2024,
invoking the provision of Order XXI Rule 58 of the Code of Civil
Procedure (CPC), asserting that the property belongs to her. She
relied upon her original title document, namely Document
No.2258/1964 - a copy of which was marked in evidence as Ext.A1;
and contended that, therefore, the attachment cannot affect her.
4. The learned Family Court, however, dismissed the
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application; against which, the appellant is before us.
5. Sri.T.R.Rajan - learned counsel for the appellant, argued
that, when Ext.A1 document luculently establishes that his client is
the owner of 3.4 Ares, out of the 7 Ares covered by it, the
attachment of balance 3.6 Ares in the name of the 4 th respondent
could not have been issued without demarcating it. He contended
that, when the property is remaining undemarcated and without their
boundaries being fixed, the attempt of the learned Family Court to
sell 3.6 Ares out of the 7 Ares, would cause grave prejudice to his
client. He consequently prayed that this Appeal be allowed.
6. However, the learned counsel for the respondents -
Sri.K.V.Anil Kumar, submitted that, since the appellant admits that
she owns only 3.4 Ares out of the 7 Ares of property covered by
Ext.A1, the view of the learned Family Court can never be found
fault with. He added that, since the appellant herself concedes that
the properties are remaining undemarcated, her claim - through an
application under Order XXI Rule 58 of the CPC - can never be
found to be maintainable. He prayed that this Appeal be, therefore,
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dismissed.
7. We have examined the judgment of the learned Family
Court and have tested it on the documents marked in evidence -
copies of which have been handed over across the Bar by the
learned counsel for the parties, with the express consent that they
can be relied upon by us for this judgment.
8. The learned Family Court has found - which remains
uncontroverted - that Ext.A1 Deed takes in 7 Ares of land, out of
which, 3.6 Ares are in the name of the 4 th respondent, with the
balance 3.4 Ares in the name of the appellant. It is contended by the
appellant that the two afore extents remain undemarcated; but
concedes that the attachment has been effected only over 3.6 Ares,
purported to be that of the 4th respondent.
9. Obviously, therefore, there is a large amount of confusion
prevailing, namely, as to which of the property belongs to the
appellant and what is the balance to the respondent. In the absence
of such details being available, the learned Family Court could have
done nothing more, than to have issued the order in question.
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10. It is also relevant that, though Sri.T.R.Rajan has not been
able to inform us the actual date of effecting attachment, it is
conceded that the husband of the appellant had moved another
application as early as in the year 2011 - numbered as
E.A.No.93/2011, allegedly with respect to another extent of property,
namely Schedule No.3. Even if we are to accept the argument of
Sri.T.R.Rajan that this property is distinct from the one which his
client is now claiming, we cannot see why she kept quiet for long,
but to then hold that she came to be aware of the attachment only
much later.
11. Be that as it may, the date of attachment or the rights of
the appellant are not relevant, particularly when she unequivocally
admits that as per Ext.A1, 3.6 Ares of land belongs to the 4 th
respondent and that only this stands attached. Obviously, if she
wants to have her property demarcated, it is up to her to have
invoked remedies for it. Since she admits that she has no rights over
the extent owned by the 4th respondent and since it is only this
which stands attached, we see no reason why she has moved a
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'claim petition'.
12. To paraphrase, the only controversy in this case is as to
the boundaries of the petition schedule property and nothing else.
This is not something that the learned Family Court could have
considered, in an application filed under Order XXI Rule 58 of the
CPC.
In the afore circumstances, this Appeal is dismissed; however,
leaving open every other liberty that may be available to the
appellant, as per law.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
