Partly allowed

Karthikeyan v. Helan Jesintha

Kerala HC13 Sept 2021Mat.Appeal/37/2021

Case brief

AI extract

What is this about?

In this matrimonial appeal against a Family Court decree, the Court set aside the portion of the judgment creating a charge over the appellant's property. It remanded the matter to the Family Court to decide whether the charge could create liability, while leaving the monetary decree for the 1st respondent intact.

What did the court decide?

Impugned judgment granting charge creation quashed to that extent; matter remanded to Family Court to decide the charge issue; monetary decree unaltered.

Karthikeyan Vs Helan Jesintha — Matrimonial and Divorce | Kerala HC (2021)

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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 A.MUHAMED MUSTAQUE

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 13^TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943 MAT.APPEAL NO. 37 OF 2021

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AGAINST THE JUDGMENT DATED 27.7.2019 IN OP 1013/2018 OF FAMILY COURT, PALAKKAD

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APPELLANT/3rd PARTY:

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KARTHIKEYAN, AGED 66 YEARS, S/O. KANDHASWAMY KOUNDER, SAI GAYATHRI NILAYAM, R.V.P PUDUR, CHITTUR TALUK, PALAKKAD - 678555 NOW RESIDING AT PLOT NO. 32, VINAYAKA GARDEN, R. PONNAPURAM, PONNAPURAM P O, POLLACHI NORTH, COIMBATORE638657.

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BY ADVS. P.B.KRISHNAN SABU GEORGE, P.B.SUBRAMANYAN

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RESPONDENTS/PETITIONER & RESPONDENT:

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1 HELAN JESINTHA, AGED 55 YEARS, D/O. VINCENT, MEKKANKALAM, ELIPARA, KOZHIPARA P O, CHITTUR TALUK, PALAKKAD – 678554.

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*ADDITIONAL ADDRESS ADDED

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*HELAN JESINTHA, AGED 55, W/O AROGYASWAMY, THASAMI NEST, POLISH KANDHASWAMY STREET, WARD NO.69, PULIYAKULAM PO, COIMBATORE, TAMILNADU 641045

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ADDED AS PER ORDER DATED 1.12.2020 IN IA NO.2/2020IN Mat.APPEAL (FILING)NO.35812 OF 2020

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2 AROGYASWAMY, AGED 63 YEARS, EDATHAARUVEEDU, KOZHIPARA P O, VADAKKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD - 678554.

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BY ADVS. ABRAHAM MATHAN

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SRI.B.PREMNATH (E), SHRI.SARATH M.S.

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal No.37/2021

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-:2:-

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Dated this the 13th day of September, 2021

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A.Muhamed Mustaque,J.

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This appeal is filed at the instance of the third party after obtaining

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leave of this Court. According to him, the property over which he has title

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has been attached in the proceedings in OP No.1013/2018 on the file of

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Family Court, Palakkad. The Family Court has also created charge while disposing of the above Original petition. Since the respondent/decree

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holder has not taken any steps to execute the decree, the appellant has no

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other option but to approach this court aggrieved by the creation of charge

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over the property.

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We heard the learned counsel for the appellant and the learned counsel for the 1st respondent. Though notice was served to the 2nd

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respondent, none appears.

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The 1st respondent filed a claim petition against the 2nd

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Mat.Appeal No.37/2021

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-:3:-

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respondent for return of gold ornaments or its value. The Family Court

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granted a decree to realise an amount of Rs.22,50,000/- with interest.

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According to the appellant, he is the owner of the property and therefore his property cannot be proceeded to recover any amount due to the 1st respondent. It appears that the 2nd respondent has not challenged the decree granted against him. Therefore, the only question survives before us is regarding the charge created over the property allegedly purchased by the appellant from the 2nd respondent. It is appropriate that this question is

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decided by the Family Court itself, in view of the fact that respondent had not filed any execution petition.

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We, in such circumstances, set aside the impugned judgment

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to the extent granting a decree creating charge over the property. Both

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counsel have no objection having the said recourse. Let the Family Court

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decide the issue whether charge can be created over the immovable

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property described in the petition schedule. The remand is only for the

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Mat.Appeal No.37/2021

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-:4:-

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limited purpose to enter into the finding on that issue, granted in relief

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No.5. The decree granting relief to the 1st respondent to recover an amount

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of Rs.22,50,000/- along with interest has not been interfered in this appeal.

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Both parties are directed to appear before the Family Court on 27/9/2021.

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Appellant is suo motu impleaded in the proceedings and shall be shown as

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the 2nd respondent in the original proceedings before the Family Court.

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Both parties shall be given sufficient opportunity to adduce evidence. The

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Family Court shall dispose of the case within a period of six months from

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the date of appearance of the parties.

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The appeal is disposed of.

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Sd/-

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A.MUHAMED MUSTAQUE, JUDGE

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Sd/-

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DR. KAUSER EDAPPAGATH, JUDGE

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kp True copy

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P.A. To Judge

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Mat.Appeal No.37/2021

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-:5:-

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APPENDIX OF MAT.APPEAL 37/2021

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PETITIONER ANNEXURE

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ANNEXURE A CERTIFIED COPY OF SALE DEED NO.2194 OF 1983 OF SRO, CHITTOOR, DATED 19.09.1983. ANNEXURE B CERTIFIED COPY OF SALE DEED NO.1794 OF 2013 OF SRO, KOZHINJAMPARA, DATED 07.09.2013. ANNEXURE C CERTIFIED COPY OF SALE DEED NO.1336 OF 2015 OF SRO, KOZHINJAMPARA, DATED 23.07.2015. ANNEXURE D TRUE COPY OF THE BASIC TAX RECEIPT, DATED 29.08.2019, OBTAINED ONLINE. ANNEXURE E TRUE COPY OF THE BASIC TAX RECEIPT, DATED 15.09.2020 OBTAINED ONLINE ANNEXURE F ORIGINAL OF THE BUILDING TAX RECEIPT DATED 26.08.2019. ANNEXURE G ORIGINAL OF THE BUILDING TAX RECEIPT DATED 23.06.2020. ANNEXURE H TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 15.09.2020, OBTAINED ONLINE.

Karthikeyan v. Helan Jesintha

Case brief

What is this about?

What did the court decide?

Karthikeyan v. Helan Jesintha

Case brief

What is this about?

What did the court decide?

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