Dismissed

Biju Thomas v. Bindhu @ Elsy

Kerala HC2 Feb 2023OP (FC)/61/2023

Case brief

AI extract

What is this about?

The High Court dismissed an Original Petition under Article 226 seeking to set aside Family Court orders. The Court held the petitioner must find means to pay the decree debt and refused to interfere with the warrant for arrest. The petition was dismissed.

What did the court decide?

The Original Petition under Article 227 of the Constitution is dismissed. Exts. P3 and P4 orders remain intact.

Biju Thomas Vs Bindhu @ Elsy — 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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THURSDAY, THE 2^ND DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 O.P.(FC) NO. 61 OF 2023

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AGAINST THE ORDER DATED 13.12.2022 IN E.A.NO.4 OF 2022 AND THE ORDER DATED 11.11.2022 IN E.P.NO.2 OF 2017 IN O.P.NO.220 OF 2015 ON THE FILE OF THE FAMILY COURT,

KATTAPPANA

PETITIONER:

BIJU THOMAS

AGED 49 YEARS, S/O. THOMAS, KURUVIKKATTU (PARACKAL) HOUSE, KUZHIKANDAM P.O., KUZHITHOLU KARA, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT, PIN – 685551.

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BY ADVS.

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TOM E. JACOB LIJI.J.VADAKEDOM

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RESPONDENT:

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BINDHU @ ELSY AGED 44 YEARS

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D/O. MATHEW, THAKARAPARAMBIL HOUSE, 8 TH MILE KARA, ANAKKARA VILLAGE, UDUMBANCHOLA TALUK,IDUKKI DISTRICT, PIN – 685512.

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THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION

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ON 02.02.2023, THE COURT ON THE SAME DAY DELIVERED THE

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FOLLOWING:

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O.P.(FC) No.61 of 2023

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JUDGMENT

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P.G. Ajithkumar, J.

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The Family Court, Kattappana as per Ext.P3 order dated 11.11.2022 issued warrant for the arrest of the petitioner in E.P.No.2 of 2017 in O.P.No.220 of 2005. E.A.No.4 of 2022 filed by the petitioner seeking to review that order was dismissed by the Family Court as per Ext.P4 order dated 13.12.2022. The petitioner therefore has filed this Original Petition under Article 227 of the Constitution of India seeking to set aside Exts.P3 and P4 orders.

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Heard the learned counsel appearing for the petitioner in detail.

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The respondent is the decree holder. She filed O.P.No.220 of 2005 seeking a decree of return of gold ornaments and money. It was decreed. The petitioner is the 1^st judgment debtor. He along with the 2^nd judgment debtor filed Mat.Appeal No.937 of 2010. This Court as per Ext.P1 judgment dated 12.06.2017 dismissed that appeal granting two months time to make payment as per the decree. Decree

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O.P.(FC) No.61 of 2023

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remained unsatisfied. So, the respondent filed E.P.No.2 of 2017. It is seen that the petitioner filed an objection to the execution petition, but when the matter was taken up for hearing, he did not turn up. A warrant for the arrest of the petitioner was issued as per Ext.P3 order.

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The petitioner along with the 2^nd judgment debtor, who is now no more, filed E.A.No.4 of 2022 invoking the provisions of Sections 114 and 151 and Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. The petitioner raised the contention that the Family Court did not record any evidence and without entering a finding that the petitioner has means, warrant was issued, which is wrong. The respondent opposed that application by filing an objection. The Family Court considered the matter in detail. The plea regarding want of finding on the means of the petitioner was answered by the Family Court with reference to proviso (c) to Section 51 of the Code. It was held that the petitioner is bound to pay the amount ordered as per Ext.P1 judgment in a fiduciary capacity and therefore a plea of no means could not be raised.

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O.P.(FC) No.61 of 2023

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We find no infirmity to the said finding. It may be noted that in Mat.Appeal No.937 of 2010, the petitioner had made an offer to pay the decreetal amount and the only request was to allow instalments. The said judgment is dated 12.06.2017. The amount due under the decree still remains unpaid.

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The learned counsel appearing for the petitioner would submit that the petitioner has no sufficient means and the income he derives from his ration business is insufficient to make payment of the decreetal amount. He remarried and has obligation to lookafter his present wife and two children. It is further submitted that the 2^nd judgment debtor, who is now no more, has landed property, but the same could not be sold so as to raise funds since property was mortgaged to a bank. The learned counsel pointing out those circumstances seeks to set aside Exts.P3 and P4 orders.

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We are unable to accept the aforesaid contentions; since none of the said reasons can be an excuse to make payment of the amount due under the decree, which has become final. The 2^nd judgment debtor, who is the father of

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O.P.(FC) No.61 of 2023

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the petitioner, had sufficient properties and on his death the property devolved upon his legal heirs, including the petitioner. It is for the petitioner to find out ways and means to raise funds to make payment of the decree debt. Exts.P3 and P4 do not suffer from any infirmity or illegality. We find no reason to interfere with the said orders, in exercise of the powers under Article 227 of the Constitution of India. Resultantly, the Original Petition is dismissed.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/P.G. AJITHKUMAR, JUDGE

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dkr

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O.P.(FC) No.61 of 2023

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APPENDIX OF OP (FC) 61/2023

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PETITIONER EXHIBITS

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EXHIBIT P1 CERTIFIED COPY OF THE JUDGMENT DATED 12.6.2017 IN MAT APPEAL NO.937/2010

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EXHIBIT P2 TRUE COPY OF THE E.P NO.2/2017 DATED 1.3.2017 FILED BEFORE THE HONORABLE FAMILY COURT KATTAPPANA

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EXHIBIT P3 CERTIFIED COPY OF THE ORDER DATED 11.11. 2022 IN E.P. NO.2/2017

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EXHIBIT P4 CERTIFIED COPY OF THE ORDER DATED 13.12. 2022 IN E.A 4/2022 IN E.P. NO.2/2017

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EXHIBIT P5 THE COPY OF THE AFFIDAVIT DATED 9.11.2022 FILED BY THE RESPONDENT SHOWING THAT THE PETITIONER HAS SUFFICIENT MEANS

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EXHIBIT P6 THE COPY OF THE OBJECTION DATED 1.4.2018 TO THE R 37 NOTICE FILED BY THE PETITIONER

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EXHIBIT P7 THE COPY OF THE REVIEW PETITION DATED 28.11.2022 FILED BY THE PETITIONER TO REVIEW EXHIBIT P3 ORDER

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EXHIBIT P8 THE COPY OF THE OBJECTION DATED 5.12.2022 TO THE REVIEW PETITION FILED BY THE RESPONDENT

Biju Thomas v. Bindhu @ Elsy

Case brief

What is this about?

What did the court decide?

Biju Thomas v. Bindhu @ Elsy

Case brief

What is this about?

What did the court decide?

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