Partly allowed

K.C.Sathyaseelan v. K.Kajal

Kerala HC7 Nov 2018OP (FC)/574/2018

Case brief

AI extract

What is this about?

The High Court of Kerala exercised supervisory jurisdiction to dispose of a petition challenging orders in an execution petition. While dismissing the petition, the Court directed the Family Court to stay the arrest warrant contingent upon payment of the decree amount in installments, considering the petitioner's age and health.

What did the court decide?

Arrest warrant stayed pending payment of Rs. 1 lakh within one month, balance payable in 12 monthly installments between January and December 2019. Default attracts resumption of warrant.

K.C.Sathyaseelan Vs K.Kajal — 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 T.V.ANILKUMAR

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WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940

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OP (FC).No. 574 of 2018

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AGAINST THE ORDER/JUDGMENT IN OS 281/1999 of FAMILY COURT,KOLLAM

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PETITIONER/S:

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K.C.SATHYASEELAN AGED 60 YEARS N.K.BHAVAN, AYATHIL.P.O., KOLLAM.

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BY ADV. SRI.K.SUBASH CHANDRA BOSE

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RESPONDENT/S:

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1 K.KAJAL

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S.N.V.SADANAM, POLAYATHODU, KOLLAM, NOW AT KOMALEZHATHU VEEDU, HOUSE NO.376-A, SREE NAGAR, PATTATHANAM, KOLLAM690 013.

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2 GOKUL S.K.

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S/O SATHYASEELAN, S.N.V. SADANAM, POLAYATHODU, KOLLAM, NOW AT KOMALEZHATHU VEEDU, HOUSE NO.376-A, SREE NAGAR, PATTATHANAM, KOLLAM-690013.

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3 CHARUTHA K

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D/O SATHYASEELAN, S.N.V. SADANAM, POLAYATHODU, KOLLAM, NOW AT KOMALEZHATHU VEEDU, HOUSE NO.376-A, SREE NAGAR, PATTATHANAM, KOLLAM-690 013.

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BY ADV. SRI.AJAYA KUMAR. G

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THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 07.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O.P.(FC) No.574/2018

JUDGMENT

C.K.Abdul Rehim, J.

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The petitioner is invoking the supervisory jurisdiction vested on this Court under Article 227 of the Constitution of India to challenge Ext.P8, Ext.P9 and Ext.P12 orders passed by the Family Court, Kollam in E.P.No.54/2009 in O.S.No.281/1999. The respondents herein are the decree holders in O.S.281/1999. The suit was decreed by the Family Court as per the judgment and decree passed on 21.2.2009. The respondents herein filed E.P.No.54/2009 before the Family Court claiming a total amount of Rs.9,55,000/-. Ext.P2 is the copy of the execution petition filed before the Family court, which was supported by Ext.P3 affidavit executed by the first respondent. The petitioner herein filed objections in the execution application inter alia contending that he has no means to pay the decreed debt. Ext.P4 is the affidavit filed

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in the form of the objections. The court below conducted an adjudication on the basis of the plea of no means raised by the petitioner. Ext.P5 is a detailed order passed by the Family Court on 18.6.2012. It was categorically found that the petitioner is the owner of 23 cents of property having a residential building situated within the limits of the Kollam Corporation, which will fetch several lakhs of rupees. The court below found that sale of a portion of the said property would be sufficient to meet the decree debt, even if he has no other source of income. It was found by the Family Court that the petitioner was a member of Y's Men club and he was elected as the District Governor of the said club in the year 2006. It was also found that he had taken membership in the Rotary International Club, in which he was elected as treasurer in the year 2009. The petitioner had admitted about ownership of a motorcycle. Even though, he had denied ownership about the car pointed out in the evidence of the decree holders, the court below actually found that the contention of the petitioner that the car belongs to 'some friends' of him cannot be accepted. Having

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found that the petitioner herein has sufficient means to pay the decree debt, and that he is willfully evading payment of the amount, the court below had issued warrant against the petitioner. It is stated by the petitioner that in the meanwhile the petitioner had challenged the decree in a matrimonial appeal filed before this Court as Mat.Appeal No.936/2009 and obtained an interim stay as per Ext.P6 order passed by this Court in I.A.No.1494/2012, dated 2.7.2012. This Court had stayed the execution of a part of the decree which pertains to payment of Rs.7 lakhs towards marriage expenses. The petitioner had also challenged Ext.P5 order passed by the court below ordering warrant of arrest against him, in an original petition filed before this Court as O.P.(FC) No. 3173/2012. It is stated that this Court had initially granted a conditional stay against the arrest of the petitioner, subject to condition of payment of the maintenance directed in the decree. In compliance with the said direction, the petitioner had paid the entire decree debt, except the portion of the marriage expenses amounting to Rs. 7 lakhs. Accordingly, the execution court had

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closed the E.P.54/2009 on 5.7.2016, presumably because there existed stay with respect to execution of the balance decree portion. Pursuant to closing of E.P.No.54/09, O.P.FC No.3173/2012 filed by the petitioner against Ext.P5 order was dismissed as infructuous, as per judgment dated 19.1.2017.

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Mat.Appeal No. 936/09 filed against the original decree

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was dismissed by this Court as per judgment dated 30.1.2018. Consequently, the respondents herein filed an application seeking restoration of the execution petition. The said application filed as E.A. 66/2018 was allowed by the Family Court and E.P. No.54/2009 was restored on the files, through Ext.P8 order passed on 20.4.2018. According to the petitioner, E.A.66/2018 was allowed without affording the petitioner to file objections regarding restoration of the execution petition. Thereafter, the court below had issued warrant against the petitioner through Ext.P9 order passed on 9.5.2018, since the petitioner failed to make payment of the balance decree debt. Aggrieved by Ext.P9 order, the petitioner sought review before the Family Court through Ext.P10 petition

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filed as E.A.125/2018. The respondents filed objections to that execution application. The court below had dismissed the said application through Ext.P12 order passed on 17.7.2018. The petitioner is challenging Ext.P9 and Ext.P12 orders, contending that the court below had failed in making enquiry about the means of the petitioner, after restoration of the execution application. It is also contended that the petitioner's request to review Ext.P9 order, based on the changed circumstances pleaded was not considered by the court below.

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Heard the counsel on either side.

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We take note of the fact that the plea raised by the petitioner that he has no means to pay the decree debt was considered elaborately in Ext.P5 order. It is on the basis of the evidence adduced on either side that the court below had arrived

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at a conclusion that the petitioner has willfully evaded payment of the decree debt. It is on that basis, the court below ordered to issue warrant of arrest against the petitioner. Evidently, challenge

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raised against Ext.P5 order was not pursued by the petitioner on

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the basis that the execution petition was closed on payment of a portion of the decree debt, which could have been enforced at that point of time. It is true that the balance portion of the decree

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remained under stay granted by this Court in the matrimonial appeal. But after dismissal of the matrimonial appeal, the respondents herein are entitled to seek further steps of execution. In that respect, the question remains as to whether the court below was justified in restoring E.P. No. 54/2009. It is pertinent to note that the petitioner herein has no case that the decree debt remained time barred. He has no case also to the effect that the portion of the decree debt for which the E.P was sought to be restored remained satisfied in any manner. Under such circumstances, we do not find any error or illegality committed by the court below in restoring the execution petition. This is especially because we notice that the closure of the execution petition was only for statistical purpose, because, the execution of the remaining part of the decree debt was under stay at that relevant point of time.

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O.P.(FC) No.574/2018

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The next question to be considered is whether the court was at an obligation to conduct a fresh enquiry regarding the means of the petitioner/decree holder, after revival of the execution petition. We find that, at the time when court passed Ext.P9 order, the petitioner has not filed any objection after revival of the execution petition contending that he has no means to pay the balance decree, under any changed circumstances. A learned Judge of this Court had occasion to consider such a situation in the ruling reported in George Mathew and another V. Gracy John (2007) (4) KLT (1099) . Referring to an earlier decision of this Court as well as to the rulings of the apex court, it was held that the judgment debtor is not entitled to get any further opportunity after the court had entered a finding that he has sufficient means and has willfully neglected to pay the decree debt. It was found that a conjoined reading of the provisions contained in Rule 37 and 40 of Order XXI and Section 51 would show that the Code of Civil Procedure envisages only one enquiry regarding the judgment debtors liability with respect to his detention in person in

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execution of the money decree.

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Considering the dictum remaining settled and on the facts

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enumerated as above, we do not think that the court was bound to conduct a further enquiry before issuing Ext.P9 order, as long as

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the judgment debtor has not pleaded any subsequent change of circumstances.

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In Ext.P10 application, the petitioner sought for a review of Ext.P5 order. In the affidavit filed in support of the said application it is only stated that, the arrest warrant was issued against him without ascertaining his financial capacity to pay the decree debt.

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The only mention in the said affidavit is that the petitioner/judgment debtor is now aged 66 years and is unemployed and is also suffering from various deceases. He has stated that he has no source of income and is unable to maintain himself. According to him, he is in the midst of claiming maintenance against the respondents 2 and 3 herein/2^nd and 3^rd decree holders. The contention now raised by the learned counsel for the petitioner is

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that the review petition was dismissed without adverting to those

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change of circumstances pointed out. We do not think that the alleged change of circumstances pointed in the affidavit filed in support of Ext.P10 application will in any manner nullify the findings contained in Ext.P5 to the effect that the petitioner has got sufficient means to pay the decree debt. This is especially because there are clear findings with respect to the assets of the petitioner and with respect to his status. Even though Ext.P12 order, through which the review petition filed by the petitioner was dismissed, contains no much discussions, we do not think that there exists any illegality or impropriety warranting interference of this Court, that too in exercise of the supervisory jurisdiction, which is visitorial in nature.

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Having confronted with the above findings, learned counsel appearing for the petitioner made an appeal to this court to show indulgence in directing to keep in abeyance execution of the arrest warrant for a reasonable time, in order to permit the petitioner to pay off the liability in a phased manner, in installments. He sought indulgence of this Court to allow payment

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of the amount of Rs.7 lakhs in 20 installments. The request is

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opposed by the learned counsel appearing for the respondents.

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However, having considered the fact that the petitioner is a person aged 66 years and also taking note of the contention that he is suffering from various illness related to age factor, we are inclined to take a liberal attitude in the matter, in order to direct the court below to keep in abeyance the execution of the arrest warrant, subject to condition of the petitioner making payment of the decreed amount in a phased manner.

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Hence, while dismissing the above O.P., we direct the Family Court, Kollam to keep in abeyance execution of the arrest warrant issued against the petitioner in E.P. No. 54/09 in O.S No.281/1999, provided the petitioner makes payments/deposit a sum of Rs.1 lakh within a period of one month from today and shall continue to pay the balance amount in 12 equal monthly installments falling due on or before 5^th day of January 2019 and on or before the 5^th day of the succeeding months. It is made clear that if the petitioner makes default in payment of the

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amount of Rs.1 lakh as stipulated above or any two consecutive monthly installments of future payments, the court below will be at

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liberty to proceed further in execution of the warrant and with

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further steps in the execution petition.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

T.V.ANILKUMAR

JUDGE

al/-

O.P.(FC) No.574/2018

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE CERTIFICATE OF ENCUMBRANCE ON PROPERTY OBTAINED FROM THE SUB REGISTRAR OFFICE, ERAVIPURAM, DATED 24.7.2018.
EXHIBIT P2	TRUE COPY OF THE EXECUTION PETITION IN E.P.NO.54 OF 2009 IN O.S.NO.281 OF 1999 BEFORE THE FAMILY COURT KOLLAM DATED 29.6.2010.
EXHIBIT P3	TRUE COPY OF THE AFFIDAVIT FILED BY THE IST RESPONDENT WITH FALSE AND BASELESS ALLEGATIONS FOR ISSUING WARRANT AGAINST THE PETITIONER UNDER ORDER XXI RULE 37 OF CPC.
EXHIBIT P4	TRUE COPY OF THE AFFIDAVIT FILED AGAINST EXHIBIT P3.
EXHIBIT P5	TRUE COPY OF THE ORDER IN E.P.NO.54/09 IN O.S.NO.281 OF 1999 DATED 18.6.2012.
EXHIBIT P6	TRUE COPY OF THE ORDER IN IA NO.1494 OF 2012 IN MAT APPEAL NO.936 OF 2009 DATED 2.7.2012 OF THIS HON'BLE COURT.
EXHIBIT P7	TRUE COPY OF THE AFFIDAVIT, PETITION AND NOTICE RECEIVED FROM THE FAMILY COURT, KOLLAM IN E.A.NO.6/18 IN E.P. 54 OF 2009 IN OS NO.281 OF 1999.
EXHIBIT P8	TRUE COPY OF THE ORDER RESTORING THE EXECUTION PETITION TO FILE.
EXHIBIT P9	TRUE COPY OF THE ORDER DATED 9.5.2018 IN E.P.NO.54 OF 2009.
EXHIBIT P10	TRUE COPY OF THE AFFIDVIT PETITIN IN E.A.NO.125 OF 2018 IN E.P.NO.54 OF 2009 IN OS NO.281 OF 1999 OF THE FAMILY COURT, KOLLAM.

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O.P.(FC) No.574/2018

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EXHIBIT P11 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS.

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EXHIBIT P12 TRUE COPY OF THE ORDER IN EP NO.54 OF 2009 DATED 17.7.2018 BEFORE THE FAMILY COURT, KOLLAM.

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RESPONDENTS EXHIBITS NIL

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TRUE COPY

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P.S TO JUDGE

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AL/-

K.C.Sathyaseelan v. K.Kajal

Case brief

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K.C.Sathyaseelan v. K.Kajal

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