Dismissed

Annamma Mathew D/O. Cadavinthara John v. Xavier Kaithara Mathew S/O. Late Mathew

Kerala HC14 Sept 2023MA (EXE.)/3/2023

Case brief

AI extract

What is this about?

This execution appeal challenged the Family Court's order denying interest on a decree amount because the appellant had previously quashed a criminal case against the respondent without serving notice, violating compromise terms. The High Court held the appeal dismissed, upholding the denial of interest as the appellant's unilateral action breach the agreement.

What did the court decide?

The execution appeal was dismissed. The order of the Family Court rejecting the claim for interest and closing the execution petition is upheld.

Annamma Mathew D/O. Cadavinthara John Vs… — Pension and Retirement Benefits | Kerala HC (2023)

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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 AMIT RAWAL

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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THURSDAY, THE 14^TH DAY OF SEPTEMBER 2023 / 23TH BHADRA, 1945 MA (EXE.) NO. 3 OF 2023

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AGAINST THE ORDERS DATED 19/1/2023 AND 24/02/2023 IN EP 16/2021 OF FAMILY COURT, KANNUR IN

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OP 106/2014 OF FAMILY COURT, KANNUR APPELLANT/PETITIONER/DECREE HOLDER:

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ANNAMMA MATHEW, D/O. CADAVINTHARA JOHN AGED 55 YEARS (FLAT NO: 98, ROYAL HAVEN PAYYAMBALAM P O-670001, KANNUR) NOW RESIDING AT FLAT NO.9A, SEA SCAPE APARTMENTS, PAYYAMBALAM PO: 670001, KANNUR.

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BY ADV K.G.BALASUBRAMANIAN

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RESPONDENT/RESPONDENT/JUDGMENT DEBTOR:

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XAVIER KAITHARA MATHEW, S/O. LATE MATHEW AGED 58 YEARS FLAT NO: 9B, ROYAL HAVEN, PAYYAMBALAM PO, KANNUR, PIN - 670001

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BY ADV BEPIN VIJAYAN

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THIS MAT APPEAL (EXECUTION) HAVING COME UP FOR ADMISSION ON 14.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal (Exe.) No. 3 of 2023

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AMIT RAWAL & C.S.SUDHA, JJ.

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Mat.Appeal (Exe.) No. 3 of 2023

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Dated this the 14^th day of September, 2023

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J U D G M E N T

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C.S.Sudha, J.

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This appeal under Section 19(1) of the Family Courts Act, 1984 has been filed by the decree holder/wife in E.P.No.16/2021 in O.P.No.106/2014 on the file of the Family Court, Kannur challenging the orders dated 19/01/2023 and 24/02/2023 rejecting her claim for interest on the decree amount for a particular period and closing the E.P. by recording full satisfaction. The respondent herein is the judgment debtor/husband. The parties and the documents will be referred to as described in the proceedings before the trial court.

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The marital relationship between the decree holder and the judgment holder was terminated/dissolved by way of mutual consent, which was arrived at on the basis of a compromise agreement entered dated 03/04/2018 between the parties ending several litigations. There are several terms in the compromise agreement to be complied with by either side. Though several litigations were settled by way of compromise, the

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parties left out one criminal case, namely C.C.No.2/2016 on the file of Judicial First Class Magistrate, Kannur, in which case the allegation is that the decree holder/former wife along with her alleged paramour tried to murder the judgment debtor/former husband. There was no agreement to withdraw the said criminal case. However, the decree holder moved Crl.M.C.No.3637/2018 and got the criminal case quashed as per Ext.R3 order on the premise that the matter had been settled between the parties. This was done without serving notice on the judgment debtor. The judgment debtor coming to know of the same, moved this Court to recall the compromise decree and to recall the order quashing the criminal proceedings. This Court by Ext.R4 order recalled the order quashing the criminal proceedings and restored Crl.M.C.No.3637/2018. By Ext.R2 order of this Court, the request of the judgment debtor to recall the compromise decree in the various matrimonial appeals between the parties was dismissed as no ground under the relevant portions of law was made out. The judgment debtor contended that as the criminal case was quashed behind his back and against the terms of the compromise arrived at between the parties, there has been a violation of the terms of the compromise and hence she is not entitled to interest on the decree amount for the period

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Mat.Appeal (Exe.) No. 3 of 2023

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from 07/06/2018 to 02/09/2022, that is, the date of filing Crl.M.C.No.3637/2018 till Ext.R4 order dated 02/09/2022 by which the order quashing the criminal proceedings was recalled. This objection was accepted by the family court. The remaining amount was deposited by the judgment debtor and hence the E.P. was closed. Aggrieved, the decree holder/former wife, has come up in appeal.

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Heard both sides.

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Admittedly, there is no clause in the compromise agreement by which C.C.No.2/2016 was agreed to be withdrawn. This court has recalled the order in Crl.M.C.No.3637/2018 quashing the criminal case as there was nothing on record to show that notice had infact been served on the judgment debtor herein. It was submitted by the learned counsel for the decree holder that when the order quashing the Crl.M.C. has been recalled by Ext.R2 order dated 02/09/2022, the grievance of the judgment debtor has been redressed and hence it is unfair and unjust to deny interest to the decree holder. We disagree. It was because the decree holder had acted against the terms of the compromise, the judgment debtor had to prosecute another proceedings to get the order recalled. Therefore, in such circumstances the trial court was justified in declining interest. We find no

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infirmity in the impugned order.

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In the result, the Mat.Appeal is dismissed.

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Interlocutory applications, if any pending, shall stand closed.

Sd/-

AMIT RAWAL

JUDGE

Sd/-

C.S.SUDHA

JUDGE

ami/

Annamma Mathew D/O. Cadavinthara John v. Xavier Kaithara Mathew S/O. Late Mathew

Case brief

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Annamma Mathew D/O. Cadavinthara John v. Xavier Kaithara Mathew S/O. Late Mathew

Case brief

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What did the court decide?

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