Dismissed

Biju Mathew v. Annamma @ Roshini

Kerala HC3 Feb 2023OP (FC)/327/2022

Case brief

AI extract

What is this about?

The High Court dismissed an original petition under Article 227 challenging an order refusing to stay execution. It held that Order XXI Rule 29 CPC does not empower execution courts to stay proceedings due to a pending suit, and latent incidents do not vitiate a compromise decree.

What did the court decide?

Petition under Article 227 of the Constitution of India dismissed; order of the Family Court refusing stay of execution proceedings upheld.

Biju Mathew Vs Annamma @ Roshini — Execution and Attachment | 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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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FRIDAY, THE 3^RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944 O.P.(FC) NO. 327 OF 2022

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AGAINST THE ORDER DATED 23.04.2022 IN E.A.NO.1 OF 2021 IN E.P.NO.59 OF 2016 IN O.P.NO.796 OF 2010 ON THE FILE OF THE FAMILY COURT, KOTTAYAM AT ETTUMANOOR

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PETITIONER:

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BIJU MATHEW, AGED 49 YEARS, MANACKAKADVIL HOUSE, ATHIRAMPUZHA PO, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686562.

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BY ADVS. P.CHANDRASEKHAR SATHEESH V.T. MANJARI G.B. K.K.MOHAMED RAVUF

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RESPONDENT:

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1 ANNAMMA @ ROSHINI AGED 45 YEARS, D/O VARKEY, KANJIRAMKALAYIL HOUSE, PERUMBAIKADU PO, PERUMBAIKADU VILLAGE, KOTTAYAM DISTRICT, PIN – 686016.

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2 BINOY MATHEW, AGED 51 YEARS, MANCKAKADAVAIL HOUSE, ATHIRAMPUZHA PO, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN – 686562.

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O.P.(FC) No.327 of 2022

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3 MATHEW, AGED 76 YEARS, S/O MANI DEVASYA, MANCKAKADAVAIL HOUSE, ATHIRAMPUZHA PO, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, PIN – 686562.

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4 VARKEY, AGED 77 YEARS, S/O VARKEY, KANJIRAMKALAYIL HOUSE, PERUMBAIKADU PO, PERUMBAIKADU VILLAGE, KOTTAYAM DISTRICT, PIN – 686016.

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BY ADV HARIDAS AMBOOR KRISHNAN NAIR

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THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 11.01.2023, THE COURT ON 03.02.2023 DELIVERED THE FOLLOWING:

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O.P.(FC) No.327 of 2022

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JUDGMENT

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P.G.Ajithkumar, J.

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Ext.P14 is an order of the Family Court, Kottayam at Ettumanoor in E.A.No.1 of 2021 in E.P.No.59 of 2016 in O.P.No.796 of 2010. The petitioner, who is the 3^rd judgment debtor, filed E.A.No.1 of 2021 under Rule 29 of Order XXI of the Code of Civil Procedure, 1908. The Family Court dismissed E.A.No.1 of 2021 as per Ext.P4. The petitioner has filed this Original Petition under Article 227 of the Constitution of India.

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On 13.06.2022, this Original Petition was admitted. Pursuant to notice, the respondents entered appearance.

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Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.

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E.A.No.1 of 2021 was filed by the petitioner along with the 2^nd judgment debtor seeking to stay the execution proceedings in E.P.No.59 of 2016 on the ground that they have filed O.P.No.247 of 2020 to declare the decree in

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O.P.(FC) No.327 of 2022

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O.P.No.796 of 2010 null and void. Ext.P2 is the judgment dated 21.12.2010 in O.P.No.796 of 2010. It is based on a compromise. Compromise even dated is Ext.P1.

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O.P.No.796 of 2010 was filed by the 1^st respondent,

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who is the wife of the 2^nd respondent. The O.P. was filed not only against her husband, but also the father and brother of the husband. They together had executed a compromise agreement, Ext.P1 and on accepting Ext.P1, decree was passed as per Ext.P2. The petitioner has filed O.P.No.247 of 2020 alleging that Ext.P1 compromise happened to be executed since the petitioner and the 2^nd judgment debtor were misled by playing fraud upon them. O.P.No.796 of 2010 was filed by the 1^st respondent on the basis of the allegation that her husband, the 2^nd respondent herein, was treating her cruelly and not looking after the affairs of herself or the children. Marriage between respondent Nos.1 and 2 was already separated by a decree of the court.

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The petitioner would contend that after obtaining

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such a compromise decree, respondent Nos.1 and 2 started

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O.P.(FC) No.327 of 2022

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living together. The 1^st respondent did not take diligent steps for enforcement of the compromise decree against the 2^nd respondent, in relation to the clause in the decree directing the 2^nd respondent to transfer the residential flat in his name in Pune in the name of the 1^st respondent and the children. Although an execution petition was filed before the court at Pune, the 1^st respondent clandestinely withdrew it. She now has filed E.P.No.59 of 2016 with a view to grab the property of the petitioner, in collusion with the 2^nd respondent. Thus, the petitioner has played fraud not only upon the petitioner and the 2^nd judgment debtor, but also the court.

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The 1^st respondent resisted E.A.No.1 of 2021 by filing a statement of objection. It was contended that without any bona fides the petition was filed and earlier they have raised similar contentions in the execution petition, which were answered against. The petitioner had approached this Court by filing O.P.(FC) No.540 of 2017, which was also dismissed. It was thereafter the petitioner filed E.A.No.1 of 2021 without any basis.

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O.P.(FC) No.327 of 2022

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Order XXI, Rule 29 of the Code empowers the court in which a suit has been filed against the holder of a decree to grant a stay of execution of the decree. This provision does not empower the Execution Court to order a stay for the reason that a suit has been pending against the decreeholder. For that reason itself E.A.No.1 of 2021 is not entertainable.

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Ext.P2 judgment is dated 21.12.2010. In terms of Ext.P1 compromise, two fixed deposits were made in the name of the children. Exts.P3 and P4 are the receipts of such deposits. Thereby the parties have acted upon the compromise decree. Ext.P5 is the decree in O.P.(Divorce) No.835 of 2009 dated 10.09.2009 as per which the marriage between respondent Nos.1 and 2 was dissolved. Now, the petitioner would contend that while the said decree of divorce is in force, respondent Nos.1 and 2 started living together. Exts.P8 and P9 were produced to substantiate that contention. Ext.P8 is the ration card and Ext.P9 is the electricity bill paid in the name of the 1^st respondent in respect of the residential

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O.P.(FC) No.327 of 2022

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flat at Pune. The said allegations are totally denied by the 1^st respondent. The 2^nd respondent did not turn up. Even if the said allegations are true, those are latent incidents, which prima facie cannot be a ground of fraud so as to vitiate the compromise as per Ext.P1. Of course, that is a question to be decided by the Family Court. The other allegation is that the Execution Petition filed by the respondent for getting the flat at Pune transferred, was withdrawn in a clandestine manner and thereafter filed E.P.No.59 of 2016. That also cannot be a ground of fraud played upon the court at the time of passing of decree vide Ext.P2 judgment. Anyhow, that also is a question to be decided by the Family Court in O.P.No.247 of 2020. The said O.P. was filed in 2020; whereas the decree sought to be set aside is dated 21.12.2010. When the petitioner filed the original petition to set aside the decree only after ten years, the pendency of such a case cannot be a reason to stay the execution proceedings.

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Further, a contention was raised by the petitioner is

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that the decree in O.P.No.796 of 2010 was not executable.

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O.P.(FC) No.327 of 2022

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The grounds of such objection were not exactly the same. The Execution Court turned down the said objection and that order was confirmed by this Court in O.P.(FC) No.540 of 2017.

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Taking all such aspects into account, we are of the view that the Family Court rightly had dismissed E.A.No.1 of 2021 and refused to stay the proceedings in E.P.No.59 of 2016 in O.P.No.796 of 2010. We find no reason to interfere with that order.

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Therefore, this Original Petition is dismissed.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

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O.P.(FC) No.327 of 2022

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APPENDIX OF OP (FC) 327/2022

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE COMPROMISE PETITION DATED 21.12.2010. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 21.12.2010 IN O.P NO. 796/2010. EXHIBIT P3 TRUE COPY OF THE TERM DEPOSIT RECEIPT FOR RS. 2.5 LAKHS OF STATE BANK OF INDIA EXHIBIT P4 TRUE COPY OF THE TERM DEPOSIT RECEIPT IN THE NAME OF SELVI BENOY OF STATE BANK OF INDIA. EXHIBIT P4A TRUE COPY OF STATEMENT OF ACCOUNT ISSUED BY STATE BANK OF INDIA SHOWING THE WITHDRAWAL OF RS.5,00,000/- FROM PETITIONER'S ACCOUNT TOWARDS TERM DEPOSIT OF RS. 2.5 EACH. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 10.09.2009 IN O.P (DIVORCE) 835 OF 2009 EXHIBIT P6 TRUE COPY OF THE ORDER DATED 21.04.2018 ALONG WITH THE ORDERS PASSED ON 06.02.2012 BY THE 10TH JOINT CIVIL JUDGE SENIOR DIVISION PUNE. EXHIBIT P7 TRUE COPY OF ORDER DATED 18.07.2017 IN E.P 59 OF 2016 IN O.P 796 OF 2010 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR EXHIBIT P8 TRUE COPY OF THE RATION CARD OF RESPONDENTS 1 AND 2 AND THEIR CHILDREN TAKEN BY THEM AFTER THE DIVORCE

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O.P.(FC) No.327 of 2022

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EXHIBIT P9

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TRUE COPY OF THE BILL FOR PAYMENT OF ELECTRICITY CHARGES IN THE MONTH OF OCTOBER, 2019 IN THE NAME OF THE 1ST RESPONDENT TO THE MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LTD

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EXHIBIT P10

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TRUE COPY OF JUDGMENT DATED 12.10.2018 IN O.P (F.C) NO. 540 OF 2017

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EXHIBIT P11

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TRUE COPY OF THE SAID AGREEMENT DATED 29.08.2009

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EXHIBIT P12

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TRUE COPY OF THE PETITION IN O.P 247/2020 ON THE FILE OF FAMILY COURT KOTTAYAM AT ETTUMANOOR

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EXHIBIT P13

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TRUE COPY OF THE EA. NO. 1/2021 IN E.P 59/2016 IN OP 796/2010 ON THE FILE OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR

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EXHIBIT P14

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A TRUE COPY OF THE ORDER DATED 23.4.2022 IN EA. NO. 1/2021 IN E.P 59/2016 IN OP 796/2010 OF THE FAMILY COURT KOTTAYAM AT ETTUMANOOR

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RESPONDENT EXHIBITS

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EXHIBIT R1

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THE TRUE COPY OF THE LETTER DATED 17.8.2020 ISSUED BY NAVAJEEVAN TRUST, KOTTAYAM

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EXHIBIT R2

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THE TRUE COPY OF THE RATION CARD OF THE 1ST RESPONDENT HEREIN

Biju Mathew v. Annamma @ Roshini

Case brief

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Biju Mathew v. Annamma @ Roshini

Case brief

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