Kerala High Court
Jyothi S.R vs M.G Thushara on 31 July, 2025
Author: Devan Ramachandran
Bench: Devan Ramachandran
2025:KER:57151
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
THURSDAY, THE 31ST DAY OF JULY 2025 / 9TH SRAVANA, 1947
OP (FC) NO. 131 OF 2025
AGAINST THE ORDER DATED 20.11.2024 IN E.A.2/2024 IN EP NO.49
OF 2021 OF FAMILY COURT,THIRUVANANTHAPURAM
PETITIONER/4TH JUDGMENT DEBTOR/1ST PETITIONER:
JYOTHI S.R., AGED 46 YEARS, D/O RAMANI DEVI
'JYOTHIS', CNRA-21, KARIKKAKAM P.O,
THIRUVANANTHAPURAM, PIN - 695021
BY ADVS.
SMT.REVATHY M.A.
SMT.GREESHMA T.G.
RESPONDENT/DECREE HOLDER & 1ST JUDGEMENT DEBTOR/1ST
PETITIONER & 1ST RESPONDENT:
1 M.G THUSHARA, D/O P. MOHANKUMAR, TC 5/821-78,
E-12, PRS LAKE VILLE, AKKULAM, SREEKARYAM P.O,
THIRUVANANTHAPURAM, PIN - 695017
2 S.R SANTHOSH KUMAR, S/O SOMASEKHARAN NAIR,
THEKKE VEEDU, KARIKKAKAM P.O,
THIRUVANANTHAPURAM, PIN - 695021
BY ADVS.
SRI.M.RAJENDRAN NAIR (THONNALLOOR)
SRI.SREEJITH R.NAIR
SMT.JESSY S.SALIM
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
31.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
JUDGMENT
Devan Ramachandran, J.
The petitioner challenges Ext.P7 order of the learned Family
Court, Thiruvananthapuram, since it has allowed the sale of a
property owned by her deceased mother.
2. The petitioner concedes that the property in question
suffered a charge on account of a Bond executed by her now
deceased mother while she was alive, which she has voluntarily
offered to save it from an order of attachment before judgment by
the learned Family Court, under the provisions of Order 38 of the
Code of Civil Procedure (CPC), as security for a claim made by the
1st respondent herein against the 2nd respondent (whom the
petitioner concedes to be her brother and husband of the said
respondent).
3. The petitioner nevertheless argues that the Bond was
not executed properly by her mother and hence that the same
would not bind her. She thus argues that Ext.P7, to the extent to
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which it goes against her interest, is illegal and unlawful.
4. In response to the afore submissions of Smt.Revathy
M.A. - learned counsel for the petitioner, the learned counsel for
the 1st respondent - Sri.Rajendran Nair, argued that the afore
submissions have already been found to be untenable by the
learned Family Court and are only a desperate attempt to defect
the validly obtained decree by his client. He contended that the
bond was executed by the deceased mother of the petitioner while
she was alive, in order to save her property from an attachment
before judgment brought on it by his client; and that hence, it is
not proper for her legal heirs to now come up and contend that it
was not properly executed. He argued that, when the Bond was
executed by the deceased qua her property with full volition and
knowing the consequences - which was then accepted by the
Court, thus lifting the attachment over it - an argument to the
contrary can never be allowed to be impelled by her legal heirs.
5. Sri.Rajendran Nair then pointed out that, his client
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obtained decree in O.P.No.1605/2014 against her husband, namely
the 2nd respondent, and that the same has become final;
subsequent to which, she levied execution, by filing
E.P.No.49/2021. He showed us that his client thereafter filed
E.A.No.2/2024, seeking that the property of the deceased mother
of the petitioner - which was offered as security through her Bond
- be brought to sale and that this has been now correctly allowed
by the learned Family Court. He thus prayed that the challenge to
Ext.P7 be repelled.
6. We have evaluated the afore rival submissions on the
touchstone of the various materials available on record.
7. Most of the facts involved are admitted and without
contest.
8. The fact that there was an attachment before judgment
over the property at the hands of the 1 st respondent, in
O.P.No.1605/2014, filed by her against the petitioner's mother and
the 2nd respondent, seeking return of her patrimony and gold; as
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also the factum of the deceased mother of the petitioner having
then executed a Bond, so as to save the property from such
attachment, are expressly conceded.
9. Admittedly, the mother of the petitioner died and it
was only then that she raised a contention on the afore lines,
asserting to have become a part-owner of the property and hence,
entitled to resist its sale. For this, she argues that the Bond
offered by her mother was not proper and that it did not conform
to the requirement of Form Nos.56, 58 and 59 of the Civil Rules
of Practice.
10. The learned Family Court has, however, found that
there was substantial compliance of all the said Rules.
11. That apart, as rightly argued by Sri.Rajendran Nair,
when the Bond was executed by the deceased mother of the
petitioner and when it had been accepted and acted on by the
learned Court, we fail to understand how the latter can then
contend in the execution proceedings that it was not executed
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properly. Indubitably and as admitted, the Bond in question had
been accepted by the learned Family Court without any
objection/contest having been raised against it; and one cannot,
therefore, countenance the argument of the petitioner that the
same is impermissible/illegal.
12. In such circumstances, this Court would have been fully
justified in dismissing this Original Petition, confirming Ext.P7.
However, acceding to the fervent request of the learned counsel
for the petitioner, we propose to give one opportunity to her to
deposit the entire decree debt, so as to save the property from
sale.
In the afore circumstances, we dismiss this Original Petition,
confirming Ext.P7; but ordering that the learned Family Court will
not put the property to sale until 30.08.2025; within which time,
the petitioner will be at liberty to deposit the entire debt, in
satisfaction of the decree, in full.
Needless to say, if the deposit is made, then all further
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proceedings pursuant to Ext.P7 will cease and the execution
proceedings closed; but should it be otherwise, the learned Family
Court will continue with the proceedings as available today for
sale of the property, without having to obtain any further orders
from this Court.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B. SNEHALATHA
JUDGE
RR
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APPENDIX OF OP (FC) 131/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMMON JUDGMENT DT.
23.11.2019 OF THE FAMILY COURT,
THIRUVANANTHAPURAM IN OP 1605/2014 AND OP
Exhibit P2 TRUE COPY OF THE SURETY BOND DT.
03.09.2015
Exhibit P3 TRUE COPY OF THE EP NO 49/2021 IN OP NO
1605/2014 FILED BEFORE THE FAMILY COURT,
THIRUVANANTHAPURAM
Exhibit P4 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENTS IN EP NO. 49/2021 BEFORE THE
FAMILY COURT, THIRUVANANTHAPURAM
Exhibit P5 TRUE COPY OF THE APPLICATION FIELD BY THE
1ST RESPONDENT FOR SALE OF THE ATTACHED
PROPERTY DT. 27.02.2024
Exhibit P6 TRUE COPY OF THE OBJECTION IN EXHIBIT P5
FILED BY THE 2ND RESPONDENT DT.
27.03.2024 RESOINDENT
Exhibit P7 TRUE COPY OF THE ORDER DT. 20.11.2024 IN
