Allowed

Vahida v. Jameela

Kerala HC18 Sept 2018MA (EXE.)/7/2018

Case brief

AI extract

What is this about?

The High Court allowed this matrimonial appeal challenging a Family Court's cryptic order passed under Order XXI Rule 58 CPC during execution proceedings. The Supreme Court set aside the order and remanded the matter for a proper adjudication of the third party's attachment claim after hearing all parties.

What did the court decide?

The impugned order was set aside and the matter was remanded to the Family Court for proper adjudication of the attachment claim within two months.

Vahida Vs Jameela — Execution and Attachment | Kerala HC (2018)

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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 C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY ,THE 18TH DAY OF SEPTEMBER 2018 / 27TH BHADRA, 1940

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MA (EXE.).No. 7 of 2018

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AGAINST THE ORDER in E.A. 24/2017 IN E.P. 43/2014 IN OP 64/2012 of FAMILY COURT, IRINJALAKUDA DATED 10-05-2018

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APPELLANT/DECREE HOLDER/PETITIONER IN O.P.

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VAHIDA

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AGED 49 YEARS D/O.PANIKKAVEETTIL MUHAMMADALI, P.O.THRITHALLUR, THRISSUR DISTRICT.

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BY ADVS. SRI.N.J.JOHNSON SHRI.T.K.AJITH KUMAR

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RESPONDENTS/JUDGMENT DEBTORS/RESPONDENTS IN OP & CLAIMANTS

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1 JAMEELA AGED 69 YEARS W/O.KUNHALIPARAMBIL KAREEM, AMADOOR DESOM, SREENARAYANAPURAM VILLAGE, D/O.THAIPARAMBIL ABDUL RAHMAN, ALA DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, PIN - 680 665.

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2 MUHAMMEDKUNJI, AGED 72 YEARS,(INSANE), S/O.THAIPARAMBIL ABDUL RAHMAN, ALA DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, REPRESENTED BY JAMEELA, AGED 69 YEARS, W/O.KUNHALIPARAMBIL KAREEM, AMADOOR DESOM, SREENARAYANAPURAM VILLAGE, D/O.THAIPARAMBIL ABDUL RAHMAN, ALA DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK, PIN- 680665.

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3 ABDUL JABBAR @ SALIM AGED 54 YEARS, S/O.PALLITHOTTUNGAL ABDUL KHADER, ALA DESOM,P.O., PORIBAZAR, KODUNGALLUR VIA, THRISSUR DISTRICT, PIN- 680664.

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Mat. Appeal (Exe) No.7/2018

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4 KUNJIBEEVATHU, AGED 71 YEARS W/O.PALLITHOTTUNGAL ABDUL KHADER, ALA DESOM SREENARAYANAPURAM VILLAGE, THRISSUR DISTRICT, PIN- 680665.

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BY ADVS. SRI.K.S.BHARATHAN SRI.ABEL ANTONY

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THIS MAT APPEAL (EXECUTION) HAVING COME UP FOR ADMISSION ON 18.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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AMG

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Mat. Appeal (Exe) No.7/2018

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C.K. ABDUL REHIM, J. &

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R. NARAYANA PISHARADI, J.

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Mat. Appeal (Exe) No. 7 OF 2018

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DATED THIS THE 18^th DAY OF SEPTEMBER, 2018

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J U D G M E N T

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Abdul Rehim, J:

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In this Matrimonial Appeal filed under Section 19 of the Family Court, challenge is against the order passed by the Family Court, Irinjalakuda in E.A No.24/2017 in E.P No.43/2014 in O.P No.64/2012. The 1^st respondent in the execution application (E.A. 24/2017) is the appellant herein, who is the decree holder. The respondents 1 & 2 are the petitioners/claimants in the said application. The respondents 3 & 4 are respondents 2 & 3 before the Family Court, who are the judgment debtors.

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E.P No.43/2014 was filed by the appellant herein seeking execution of the decree passed by the Family Court in O.P No.64/2012. The E.P. was filed against the respondents 3 & 4 herein. In the execution proceedings, certain immovable property belonging to the respondents 3 & 4 were proceeded against. At that time the respondents 1 & 2 herein filed E.A No.24/2017 under Order XXI Rule 58 claiming right over the property under attachment and objected the proceedings for the sale proposed with respect to the said property. The court below had passed an order in E.A No.24/2017 as follows ;

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Mat. Appeal (Exe) No.7/2018

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''Petition filed under Order 21 Rule 58 of C.P.C for raising attachment.

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1^st counter petitioner present. As per claim raised, 1^st counter petitioner is permitted to proceed with ¼ share of the property. Hence take steps in EP. This is posted with EP.''

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The appellant is assailing the above said order, mainly on the basis that it is totally non-speaking and lacks any application of mind by the court below.

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Heard ; counsel for the appellant as well as the counsel appearing for the respondents 1 & 2. Despite service of notice, the respondents 3 & 4 had not entered appearance.

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We take note of the fact that the Family Court has not disposed of E.A No.24/2017. On the other hand, the E.A is posted along with the Execution Petition (EP). But the direction issued to the appellant to proceed against 1/4^th share in the property, cannot be sustained. The court below ought to have adjudicated the application filed under Order XXI Rule 58, after hearing all the parties concerned and if necessary after taking evidence. Under normal circumstances, the court should take a decision regarding sustainability of the claim raised by any third party with respect to right over any property under attachment. Through the cryptic order now passed by the court below which is under challenge in this appeal, the Family Court had failed to deal with the matter in a legal and proper manner. Therefore we are inclined to interfere with the order impugned herein. Considering the

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Mat. Appeal (Exe) No.7/2018

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interest of justice we think it appropriate to direct the court below to conduct a proper adjudication in the claim petition filed by the respondents 1 & 2, after affording a reasonable opportunity to all the parties concerned ; and to take an appropriate decision within a time limit to be fixed.

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Therefore, the above appeal is hereby allowed. The impugned order passed by the Family Court, Irinjalakuda in E.A. No.24/2017 in E.P. No.43/2014 in O.P. No.64/2012, dated 10-05-2018 is hereby set aside. The said court is directed to consider E.A. No.24/2017 afresh and to conduct an adjudication with respect to the claim raised by respondents 1 & 2 herein, after affording reasonable opportunity to all the parties concerned. The above application shall be disposed of at the earliest possible, at any rate, within a period of 2 months from the date of production of a copy of this judgment.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

R. NARAYANA PISHARADI

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JUDGE

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AMG

Vahida v. Jameela

Case brief

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Vahida v. Jameela

Case brief

What is this about?

What did the court decide?

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