Dismissed

Abdul Razack.T.K v. Naseera.M.K

Kerala HC6 Dec 2010OP (FC)/1004/2010

Case brief

AI extract

What is this about?

The High Court dismissed a petition invoking Article 227 jurisdiction to challenge an order remitting an execution application for return of funds. The court held the petition premature as the underlying order was not challenged. The petitioner is directed to approach the Family Court with necessary endorsements and a fresh application.

What did the court decide?

The petition is dismissed; the petitioner is directed to re-present the application before the Family Court with necessary endorsements.

Abdul Razack.T.K Vs Naseera.M.K — Civil Procedure and Limitation | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE R.BASANT &

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THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN

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MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932

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OP (FC).No. 1004 of 2010(R)

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--------------------------OP.26/2006 of FAMILY COURT,KOZHIKODE

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PETITIONER

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ABDUL RAZACK.T.K S/O.GASSALI HAJI, KUNICHITHODIKA HOUSE CHENNAMANGALLUR AMSOM DESOM,KOZHIKODE TALUK.

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BY ADV. SRI.CIBI THOMAS

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RESPONDENT(S):

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NASEERA M.K, D/O. ABDUSSALAM, AGED 30 YEARS,ELAYOOR HOUSE , ERNAD TALUK, KEEZHPARAMBA AMSOM DESOM.

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STATE OF KERALA, REP BY CHIEF SECRETARY SECRETARIAT,THIRUVANANTHAPURAM.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R. BASANT & K. SURENDRA MOHAN, JJ.

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------------------------------------------------O.P.(FC) No.1004 of 2010

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------------------------------------------------Dated this the 6^th day of December, 2010

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JUDGMENT

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Basant,J.

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The petitioner has come to this Court to challenge an order of return of an Execution Application which was filed before the Family Court, Kozhikode.

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According to the petitioner, there are amounts in deposit which are liable to be returned to the petitioner even after satisfying the order passed against him i.e., Ext.P2. He filed the E.A. in question claiming return of the amounts. In that, the office made a note and reported to the court as follows:

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“No deposit. The claimed amount of Rs.86,047/- is released as per order in C.M.P.No.719/09 dated 29/10/09.”

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Mat. Appeal No. 45 of 2008 -: 2 :-

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On seeing the endorsement, the learned Judge without hearing the matter on the Bench, passed an order on 28/10/10 which reads as follows:

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Judge 28/10/10”

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The petitioner has come rushing to this Court. We

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wanted the counsel to explain to us what this order in C.M.P.No.719/09 dated 29/10/09 is? We get no satisfactory reply. Has the amount already been released to the petitioner? Or has the amount been released to some other person after notice to the petitioner as per the said order? We do not get satisfactory replies to these queries also.

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We think that this petition of the petitioner is premature. If he is aggrieved by the order in C.M.P.No.719/09 dated 29/10/09, he should necessarily have challenged it. If the amount is still available in court, the petitioner must re-present the petition after making necessary explanation and must solicit orders on merits from the Family Court. That order to be passed or the earlier order dated 29/10/09 may deserve challenge. At any rate, at the moment, we find absolutely no merit in the prayer to invoke the extraordinary constitutional

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Mat. Appeal No. 45 of 2008 -: 3 :-

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jurisdiction under Art.227 of the Constitution against the impugned order dated 28/10/10 which only directs return of the E.A. on the basis of the endorsement extracted above. The petitioner must re-present the petition with necessary endorsement and must request the Family Court to permit him to make his application and pass an appropriate order on his petition.

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With the above observations, this petition is dismissed.

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Hand over a copy of this judgment to the learned counsel for the petitioner for production before the Family Court when he re-presents such application.

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Sd/R. BASANT (Judge)

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Sd/K. SURENDRA MOHAN (Judge)

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Nan/

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//true copy//

Abdul Razack.T.K v. Naseera.M.K

Case brief

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Abdul Razack.T.K v. Naseera.M.K

Case brief

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