Partly allowed

Jijo Vargheese v. Minu Thomas

Kerala HC15 Nov 2018OP (FC)/576/2018

Case brief

AI extract

What is this about?

The High Court of Kerala allowed an original petition under Article 227 of the Constitution. The court quashed an absolute order made by the Family Court to confirm a conditional attachment of properties. It directed the lower court to dispose of the interim application afresh after allowing both parties an opportunity to be heard and submit documents.

What did the court decide?

The impugned order passed on 8.6.2017 in I.A. No.1087/2017 is quashed. The Family Court is directed to dispose of the application afresh within one month, after affording an opportunity to both sides

Jijo Vargheese Vs Minu Thomas — Property and Title | 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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THURSDAY ,THE 15TH DAY OF NOVEMBER 2018 / 24TH KARTHIKA, 1940

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OP (FC).No. 576 of 2018

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AGAINST THE ORDER/JUDGMENT IN OP 373/2017 of FAMILY COURT, IRINJALAKUDA

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PETITIONERS/RESPONDENTS 1 TO 3:

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1 JIJO VARGHEESE AGED 34 YEARS S/O VARGHEESE, THAZHATHEKUDY HOUSE, KALLA, ELAVAMPADA P O, KIZHAKKENCHERY, PALAKKAD DISTRICT, KEARAL - 678684 2 MARIYAMMA VARGHESE W/O VARGHEESE, AGED 68 YEARS, THAZHATHEKUDY HOUSE, KALLA, ELAVAMPADA P O, KIZHAKKENCHERY, PALAKKAD DISTRICT, KEARAL - 678684 3 JISSO VARGHEESE S/O VARGHEESE, AGED 40 YEARS, THAZHATHEKUDY HOUSE, KALLA, ELAVAMPADA P O, KIZHAKKENCHERY, PALAKKAD DISTRICT, KEARAL - 678684 BY ADV. SRI.BABY MATHEW

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O.P.(F.C.) No.576/2018

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RESPONDENTS/PETITIONER: MINU THOMAS AGED 28 YEARS D/O THOMAS, RESIDING AT MANALEL HOUSE, PERAMBRA P O, CHALAKKUDY, TRISSUR DISTRICT - 680689 BY ADVS. SRI.C.N.SREEKUMAR SRI.ANIL PRASAD SMT.C.A.LINCY SMT.MANJU PAUL SRI.SABU P.JOSEPH

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 15.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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O.P.(F.C.) No.576/2018

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JUDGMENT

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C.K.Abudul Rehim, J.

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The petitioners herein are the respondents in

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O.P.No.373/2017 instituted by the respondents herein before the Family Court, Irinjalakkuda, seeking realisation of money and gold ornaments.

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In an interim application filed by the respondent along with the said O.P., as I.A. No.1087/2017,

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the Family Court had passed a conditional order of attachment with respect to 3 items of properties scheduled in the said application. The order of conditional attachment was passed on 9.5.2017. According to the petitioners, they filed detailed counter statement in the above said interim

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application, as per Ext.P4. But it is alleged

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that, without considering the said counter statement, the Family Court had passed Ext.P5

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O.P.(F.C.) No.576/2018

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order as follows:

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“The second respondent entered appearance. The first and second respondents are reported abroad. Order against the 2^nd respondent made absolute till disposal of the O.P. Call on 19.6.2017”.

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It is aggrieved by the said order passed on

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8.6.2017, the petitioner is approaching this Court

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by invoking the supervisory jurisdiction vested to this Court under Article 227 of the Constitution of India.

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The contention of the petitioners is that,

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value of the properties now attached, contained in the three schedules, will be much higher than the

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claim raised in the O.P. According to the

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petitioners, attachment of properties covered under one of the schedules will be more than sufficient to secure the claim. It is contended that, the court below had failed to appreciate

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those aspects and the conditional order of attachment was made absolute without affording any

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O.P.(F.C.) No.576/2018 5

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opportunity to the petitioners to contest their

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case before the court below.

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Learned counsel appearing for the respondent submitted that, after passing of the

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conditional order of attachment on 9.5.2017, the

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case was adjourned for appearance of the petitioners herein, to 24.5.2017. Thereafter, the matter was again adjourned to 8.6.2017. On that date, the 2^nd petitioner herein alone appeared and

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it was reported that respondents 1 and 3 are abroad. The learned counsel for the respondents submitted that, the alleged counter statement,

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copy of which is produced herein as Ext.P4, was filed only subsequent to the passing of Ext.P5 order, on 8.6.2005.

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Learned counsel appearing for the

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petitioners have fairly conceded that the counter statement was not available before the court, on the date on which the interim order impugned

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O.P.(F.C.) No.576/2018

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herein was passed. He made an appeal to this

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Court to direct the Family court to consider the contentions of the petitioners, before making the conditional attachment absolute.

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Considering the circumstances, as mentioned

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above, we are of the opinion that, it is only

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just and proper to afford an opportunity to the petitioners to contest I.A. No.1087/2017 on merits. Therefore, we think it only appropriate to afford an opportunity to the petitioners to file objections supported by documents if any, against the order of conditional attachment. It is only just and proper to direct the Family Court

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to dispose of the said application afresh, after affording opportunity to both sides.

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Hence, the above Original Petition is

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hereby allowed to the extent of quashing Ext.P5

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order passed by the Family Court, Irinjalakkuda in I.A. No.1087/2017 in O.P. No.373/2017, dated

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O.P.(F.C.) No.576/2018 7

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8.6.2017. The said court is directed to consider

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and dispose of I.A.No.1087/2017 afresh, taking

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into consideration of all the contentions of the

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petitioners against the conditional order of

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attachment. Fresh orders in this regard shall be

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passed after affording opportunity to the

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petitioners to file pleadings and documents if

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any, and after affording opportunity of hearing to both sides.

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disposed of at the earliest possible, at any rate,

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within a period of one month from the date of production of a copy of this judgment.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

T.V.ANILKUMAR

JUDGE

Al/-

O.P.(F.C.) No.576/2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O P NO. 373/2017 EXHIBIT P2 TRUE COPY OF THE APPLICATION IN I A NO 1087/2017 EXHIBIT P3 TRUE COPY OF THE CONDITIONAL ATTACHMENT ORDER DATED 12/10/2017 EXHIBIT P4 TRUE COPY OF THE COUNTER STATEMENT IN I A NO. 1087/2017 EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED 08/06/2017 IN I A NO. 1087/2017

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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/-

Jijo Vargheese v. Minu Thomas

Case brief

What is this about?

What did the court decide?

Jijo Vargheese v. Minu Thomas

Case brief

What is this about?

What did the court decide?

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