Kerala High Court
Joseph Kuruvilla vs Jeena Simon on 17 January, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
OP(FC).No.774 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 17TH DAY OF JANUARY 2025 / 27TH POUSHA, 1946
OP (FC) NO. 774 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN EP NO.29 OF 2023
OF FAMILY COURT, PATHANAMTHITTA ARISING OUT OF THE
ORDER/JUDGMENT DATED IN OP NO.89 OF 2022 OF FAMILY COURT,
THIRUVALLA
PETITIONERS/PETITIONER/JUDGMENT DEBTOR 2 AND 3:
1 JOSEPH KURUVILLA
AGED 70 YEARS
S/O. K I KURIVILLA, KANDATHIL, PAZHAVANAGADI,
RANNY - PAZHAVANANGADI, PATHANATHITTA., PIN -
689673
2 SALY JOSEPH
AGED 65 YEARS
W/O. JOSEPH KURUVILLA, KANDATHIL, PAZHAVANAGADI,
RANNY - PAZHAVANANGADI, PATHANAMTHITTA., PIN -
689673
BY ADVS.
AMRIN FATHIMA
BLESSON GEORGE
NEDHEER SHAFI T.A.
RESPONDENTS/RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTOR 1:
1 JEENA SIMON
OP(FC).No.774 of 2024
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AGED 42 YEARS
D/O. SIOMN GEROGE, MALAYIL PUTHUVEED, ITHITHANAM
P.O., CHANGANACHERY ., PIN - 686535
2 TINTU KURUVILA
AGED 40 YEARS
S/O. JOSEPH KURUVILLA, KANDATHIL, PAZHAVANAGADI,
RANNY - PAZHAVANANGADI, PATHANAMTHITTA., PIN -
689673
SRI.P.A ANIRUDHAN
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
17.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.
================================
OP(FC).No.774 of 2024
================================
Dated this the 17th day of January, 2025
JUDGMENT
DEVAN RAMACHANDRAN, J
The petitioners suffered an ex parte decree in
O.P.No.89/2022, on the files of the Family Court, Thiruvalla. The
respondents levied execution, which was transferred to the
learned Family Court, Pathanamthitta, and numbered as
E.P.No.29/2023, because the property proceeded against was
within its jurisdiction. Thereupon, filed R.P.No.50/2024, invoking
the provisions of Order IX Rule 13 of the Code of Civil Procedure,
seeking the ex parte decree to be set aside, conceding that this
was filed with delay of 650 days. They alleged that, however,
pending the said application for restoration, the execution of the
original decree is now being proceeded with; and therefore, that
they have been put to irreparable prejudice, thus constraining
them to approach this Court, especially since their request for
stay of further proceedings in the execution petition has now
been rejected by the learned Family Court, Pathanamthitta,
through Ext.P10 order.
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2. Smt.Amrin Fathima - learned counsel for the
petitioners, explained that her clients had earlier approached this
Court to obtain Ext.P9 judgment, wherein, this Court had
directed the learned Execution Court to decide their application
for stay, pending the Restoration Application above mentioned.
She argued that, however, the learned Family Court has
mechanically dismissed it, merely saying that the Restoration
Application is still pending. She contended that this is going in
circles and that the learned court has acted without properly
adverting to the factual scenario.
3. On hearing Smt.Amrin Fathima on the afore lines,
when this matter was earlier listed, we had called for a report
from the learned Family Court, Thiruvalla, as to the present
status of R.P.No.50/24 in O.P.No.89/2022. The learned court has
reported that, Restoration Application will be disposed of within a
period of two months from 15.02.2025, when it is next listed.
4. We notice from the endorsements on file that service
on the respondents is complete. However, only the 2 nd
respondent has appeared, represented through Sri.P.A
Anirudhan.
5. Sri.P.A Anirudhan did not stand in the way of this
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Court accepting the report of the learned Family Court
mentioned above; but argued that the stay of execution is
necessary.
6. We are afraid that we cannot find favour with the
stand of the 2nd respondent because, in matters of matrimonial
issues, equity is paramount; and when the Restoration
Application is poised for final disposal - which is certain to be
done within a period of two months from 15.02.2025, as
reported by the learned Family Court - we see no reason why the
original ex parte order should be allowed to be executed and the
parties subjected to irreparable consequences.
7. In the above circumstances, we are left without
doubt that Ext.P10 will have to be interfered with.
8. In such perspective, we allow this Original Petition
and set aside Ext.P10, thus allowing E.A.No.2/2024 in
E.P.No.29/2023; and ordering that further proceedings in the
said execution petition will stand deferred for a period of two
months from the date of receipt of a copy of this judgment, or
until such time as RP.No.50/2024 in OP.No.89/2022 on the files
of the Family Court, Thiruvalla, is finally disposed of.
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As a necessary corollary, we accept the report of the
learned Family Court, Thiruvalla, dated 16.01.2025 and order it
to dispose of the aforementioned RP not later than two months
from 15.02.2025.
Sd/-
DEVAN RAMACHANDRAN,
JUDGE
Sd/-
M.B.SNEHALATHA,
JUDGE
Mms
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APPENDIX OF OP (FC) 774/2024
PETITIONERS EXHIBITS
Exhibit P1 A TRUE COPY OF THE ACCOUNT STATEMENT
WITH CUSTOMER ID NO. 1169940 IN THE NAME
OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF TRAVEL BAN ORDER DATED
20.09.2022
Exhibit P3 A TRUE COPY OF THE JUDGMENT AND DECREE
DATED 23.11.2022 IN O.P. NO. 89/2022 OF
THE HON'BLE FAMILY COURT, THIRUVALLA
Exhibit P4 A TRUE COPY OF E.P. NO. 29/2023 DATED
05.10.2023 IN O.P. NO. 89/2022 PENDING
BEFORE THE HON'BLE FAMILY COURT,
PATHANAMTHITTA
Exhibit P5 A TRUE COPY OF R.P. NO. 50/2024 DATED
31.08.2024 IN O.P. NO. 89/2022 OF THE
HON'BLE FAMILY COURT, THIRUVALLA
Exhibit P6 A TRUE COPY OF THE OBJECTION DATED
06.09.2024 FILED BY THE PETITIONERS IN
E.P. NO. 29/2023 IN O.P. NO. 89/2022
BEFORE THE HON'BLE FAMILY COURT,
PATHANAMTHITTA
Exhibit P7 A TRUE COPY OF EA NO. 2/2024 DATED
06.09.2024 IN E.P. NO. 29/2023 IN O.P.
NO. 89/2022 BEFORE THE HON'BLE FAMILY
COURT, PATHANAMTHITTA
Exhibit P8 A TRUE COPY OF THE JUDGMENT DATED
07.10.2024 IN OP(FC) NO. 608/2024 OF
THIS HON'BLE COURT
Exhibit P9 A TRUE COPY OF THE JUDGMENT DATED
06.11.2024 IN OP(FC) NO. 672/2024 OF
THIS HON'BLE COURT
Exhibit P10 A TRUE COPY OF ORDER DATED 07.11.2024 IN
EA NO. 2/2024 IN E.P. NO. 89/2022 OF THE
HON'BLE FAMILY COURT, PATHANAMTHITTA
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