Dismissed

Mathew Jose v. Jessy Joseph

Kerala HC12 Sept 2018OP (FC)/477/2018

Case brief

AI extract

What is this about?

The High Court of Kerala, on supervisory jurisdiction under Article 227, dismissed a petitioner's petition seeking recall of an attachment warrant issued by the Family Court. The Court held there was no illegality, jurisdictional error, or denial of natural justice to sustain the warrant despite the petitioner's claim of indigence and subsequent property transfer.

What did the court decide?

The original petition seeking direction to recall the warrant of attachment is dismissed.

Mathew Jose Vs Jessy Joseph — Maintenance and Alimony | 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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WEDNESDAY, THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940

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OP (FC)No.477 of 2018

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(AGAINST THE ORDER/JUDGMENT IN MC 2115/2013

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OF FAMILY COURT, ERNAKULAM)

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PETITIONER:

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MATHEW JOSE, AGED 59 YEARS, S/O.JOSEPH, CHAKYAMURIYIL HOUSE, KUMBALANGI, ERNAKULAM DISTRICT.

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BY ADV. T.G. GOPINATHAN

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RESPONDENTS:

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1 JESSY JOSEPH, D/O.JOSEPH, STAR HOMES 5E, COMPRESSION MUKKU, TRIPUNITHURA 682 301.

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2 FEEMA, AGED 26 YEARS, D/O.MATHEW JOSEPH, STAR HOMES 5E, COMPRESSION MUKKU, TRIPUNITHURA-682 301.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OP (FC)No.477 of 2018

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JUDGMENT

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C.K.ABDUL REHIM, J

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By invoking the supervisory jurisdiction vested on this Court under Article 227 of the Constitution of India, the petitioner is seeking for a direction to the Family Court, Ernakulam to recall the warrant issued against him, under Ext.P1.

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2. On a persual of Ext.P1, we take note that it is the communication containing the extract of the warrant issued by the Family Court, addressed to the District Collector, forwarded for the prupose of executing the attachment of properties of the petitioner, for recovery of an amount of Rs.5,40,000/-, being the arrears of maintenance ordered in favour of his wife and child, who are the respondents herein.

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3. Contention of the petitioner is that, he has no source of income to pay the amount of maintenance ordered by the Family Court. According to him, he had already filed O.P.No.1129/2014 before the Family Court, seeking for dissolution of the marriage existing with the 1^st respondent, which stands allowed. It is stated that, the petitioner is not holding any movable or immovable property. According to him, the residential property belonging to him,

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OP (FC)No.477 of 2018

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comprised in survey No.1238/5 of Kumbalangy Village, stands transferred into the name of his present wife through Ext.P2 agreement executed. It is contended that, before issuing the warrant of attachment, he was not afforded with any opportunity of personal hearing before the Family Court.

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4. We notice that, Ext.P1 communication of the Family Court addressed to the District Collector directing enforce the attachment, can only be based on a judicial order passed by that court in the execution petition filed by the respondents for executing the order passed by the Family Court. We notice that, the warrant is issued in M.P.No.94/2017 in M.C.No.2115/2013. The petitioner is not disputing about the default committed by him in the matter of payment of the maintenance ordered. The petitioner had produced nothing to show that he had challenged the order in the MC case or the order of attachment passed in the MP petition. We do not find any illegality, error of jurisdiction, or violation of law committed by the Family Court in issuing Ext.P1. Contention of the petitioner is that his property stands already assigned to his second wife through an agreement. If there is any such claim with respect to the said property, it is for the petitioner any other person aggrieved to approach the appropriate authority or court with such claims, in case of attachment of the said property.

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OP (FC)No.477 of 2018

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5. From the circumstances as mentioned above, we do not think that there exists any ground to entertain the present original petition, seeking direction to the Family Court for recalling of the warrant issued.

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Consequentluy, the Original Petition fails and the same is hereby dismissed.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

R. NARAYANA PISHARADI

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JUDGE

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OP (FC)No.477 of 2018

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TYPED COPY OF THE WARRANT DATED 22.06.2018 ISSUED BY THE FAMILY COURT, ERNAKULAM.

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EXHIBIT P2 TRUE COPY OF THE AGREEMENT AND RECEIPT ACKNOWLEDGING PAYMENT OF THE SALE CONSIDERATION.

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RESPONDENTS EXHIBITS : NIL

Mathew Jose v. Jessy Joseph

Case brief

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Mathew Jose v. Jessy Joseph

Case brief

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