Moithutty Vs Sajitha — Kerala HC (2025) — LawSathi Research

Moithutty Vs Sajitha — Kerala HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Original Petition allowed; Ext.P1 (order dated 15.02.2025 in I.A.No.1/2025 in O.P. No.284/2019, Family Court, Ottappalam) set aside, with a direction to the Family Court to reconsider and dispose of IA No.1/2025 without avoidable delay, as per law, adverting to all relevant aspects including the respondent's contentions.

Issue for consideration

Was the learned Family Court justified in dismissing IA No.1/2025 — the petitioner's application to substitute the property attached before judgment with another — on its stated ground that the attached asset is an apartment forming part of an apartment complex with an undivided right over the land, which may not be that easy for the respondent to realise a decree from? +1 more

Court's answer

The finding that an apartment in a complex cannot be sold cannot be countenanced as a general proposition; this Court expressly declines to lay down anything further on the point.

Ratio / Principle

If the respondent has a case that the apartment is either worthless, or that it is incapable of being sold for other reasons, the learned Family Court has a duty to consider the same and issue appropriate orders; this Court refrains from deciding that aspect itself and leaves it to the Family Court.

Key takeaways

Ext.P1 is set aside and the Family Court, Ottappalam is directed to reconsider IA No.1/2025 as per law, adverting to all relevant aspects including the contentions of the respondent, and to dispose of it without avoidable delay.ratio¶36

Detailed headnote1 paragraphs

Kerala High Court (Division Bench: Devan Ramachandran and M.B. Snehalatha, JJ.) allows OP (FC) No.187 of 2025 and sets aside Ext.P1, the Family Court, Ottappalam's order dated 15.02.2025 in I.A.No.1/2025 in O.P. No.284/2019, whereby the Court had refused the petitioner's plea to substitute the property attached before judgment (obtained by the respondent-wife in O.P. No.284/2019) with another property — a flat purchased by the petitioner and offered as security. The Family Court's sole reason was that the attached property being an apartment in a complex with an undivided right over the land, it may not be easy for the respondent to recover the decretal money. Holding that the general proposition that an apartment in a complex cannot be sold 'certainly cannot find our favour', the Division Bench sets Ext.P1 aside. It further holds that if the respondent contends the offered flat is worthless or unsaleable — her case being that it stands on recorded “Nilam” (paddy) land and was constructed in violation of law — the Family Court has a duty to consider such contentions and issue appropriate orders. The Family Court is directed to re-decide I.A.No.1/2025 as per law, adverting to all relevant aspects, without avoidable delay. Neutral citation: 2025:KER:29080; decided 04.04.2025.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

&

THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA

FRIDAY, THE 4^TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947

OP (FC) NO. 187 OF 2025

AGAINST THE ORDER DATED 15.02.2025 IN IA 1/2025 IN OP NO.284

OF 2019 OF FAMILY COURT, OTTAPPALAM

PETITIONER/PETITIONER/RESPONDENT:

MOITHUTTY, AGED 49 YEARS, S/O LATE MAMMU, VATTARA HOUSE, KOTHAKURUSSI, P.O. PANAMANNA, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679501

P.JAYARAM O.M.RAVI P.B.AJOY A.M.THOMAS (AYKAN) NANDHA KUMAR V.H.

RESPONDENT/RESPONDENT/PETITIONER:

SAJITHA, AGED 49 YEARS, D/O. LATE MUSTHAFA, THENAMOOCHIKKAL VEETIL, P.O.PATHAMKULAM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN – 679522

SRI.RAVI K.PARIYARATH

THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP (FC) NO. 187 OF 2025

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2025:KER:29080

JUDGMENT

Devan Ramachandran, J.

The petitioner impugns Ext.P1 order of the learned Family Court, Ottappalam, which dismissed IA No.1/2025 in OP No.284/2019.

Shorn of all unnecessary details, the petitioner moved the above-mentioned application, seeking that the attached property be allowed to be substituted with another since the respondent, while moving the Original Petition, had obtained such attachment before judgment.

However, the learned Family Court dismissed the application through Ext.P1 saying “the property being an apartment forming part of an apartment complex with an undivided right over the land wherein the building stands, it may not be that easy for the respondent to recover the money due to her if she is found entitled to get a decree, by disposing the same under the due process of law” (sic).

Sri.P.Jayaram – appearing for the petitioner, vehemently argued that the above holdings of the learned Family Court are untenable and based on surmises. He

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OP (FC) NO. 187 OF 2025

contended that there is no difficulty for any apartment to be sold through Court; and hence that the findings of the learned Family Court require to be interdicted. He thus prayed that this Original Petition be allowed and Ext.P1 be set aside.

Sri.Ravi K.Pariyarath – appearing for the respondent, on the other hand, submitted that his client's case is not that an apartment cannot be sold, but that the one in question has been constructed in violation of law and hence without any legal worth. He explained that, the property on which the apartment is constructed, is a “Nilam” (Paddy Land as per records), and hence that it is impossible to have the same sold through a process of law.

We have examined Ext.P1, and as rightly argued by Sri.P.Jayaram, the only reason given by the learned Court in dismissing the application is as extracted above.

However, if the respondent has a case that the apartment is either worthless, or that it is incapable of being sold for other reasons, certainly the learned Court have a duty to consider the same and issue appropriate orders.

We are, therefore, of the view that Ext.P1 cannot find our favour; but do not propose to speak any further since we

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OP (FC) NO. 187 OF 2025 4

want the said Court to decide IA No.1/2025 as per law, adverting to all relevant aspects, including the contentions of the respondent.

To reiterate, the finding that an apartment in a complex cannot be sold as a general proposition, certainly cannot find our favour. We say nothing more.

In the afore circumstances, this Original Petition is allowed and Ext.P1 is set aside; with a direction to the learned Family Court to reconsider IA No.1/2025 and to dispose it of without avoidable delay, as per law.

Sd/- DEVAN RAMACHANDRAN

JUDGE

Sd/- M.B. SNEHALATHA

JUDGE

stu

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OP (FC) NO. 187 OF 2025

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APPENDIX OF OP (FC) 187/2025

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ORDER DATED 15/02/2025 IN I.A.NO.1/2025 IN O.P. NO. 284/2019 ON THE FILES OF FAMILY COURT, OTTAPALAM Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 18/11/2024 IN MAT. APPEAL NO.918/2024, HIGH COURT OF KERALA Exhibit P3 TRUE COPY OF THE APPLICATION TO LIFT THE ATTACHMENT, I.A.NO.1/2025 IN O.P. NO. 284/2019 ON THE FILES OF FAMILY COURT, OTTAPALAM Exhibit P4 TRUE COPY OF THE SECURITY BOND DATED 24/01/2025 EXECUTED BY THE PETITIONER HEREIN IN O.P.NO.284/2019 ON THE FILES OF FAMILY COURT, OTTAPALAM Exhibit P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT HEREIN IN I.A.NO.1/2025 IN O.P. NO. 284/2019 ON THE FILES OF FAMILY COURT, OTTAPALAM Exhibit P6 TRUE COPY OF THE ORIGINAL PETITION IN O.P. NO. 284/2019 ON THE FILES OF FAMILY COURT, OTTAPALAM Exhibit P7 TRUE COPY OF THE SALE DEED NO. 78 OF 2025, SRO OTTAPALAM, WHEREBY, THE PETITIONER PURCHASED THE FLAT OFFERED AS SECURITY TO LIFT THE ATTACHMENT

Exhibit P8 TRUE COPY OF THE VALUATION CERTIFICATE DATED 19/03/2025 ISSUED BY THE CHARTERED ENGINEER & REGISTERED VALUER SHOWING THE PRESENT VALUE OF THE FLAT OFFERED AS SECURITY