Kerala High Court
Tomy Cyril vs Elizebath K. Dominic on 20 February, 2019
Bench: C.K.Abdul Rehim, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940
OP (FC).No. 107 of 2019
ARISING FROM OP 73/2019 of FAMILY COURT, ALAPPUZHA
PETITIONERS/RESPONDENTS 2 & 3:
1 TOMY CYRIL,
AGED 63 YEARS
S/O.LATE CYRIL, PALIYATHAYIL HOUSE,
THAICKAL P.O., CHERTHALA, ALLEPPEY-688539.
2 REETHAMA TOMY,
AGED 58 YEARS
W/O.TOMY CYRIL, PALIYATHAYIL HOUSE,
THAICKAL P.O., CHERTHALA, ALLEPPEY-688539.
BY ADVS.
SRI.A.G.ADITYA SHENOY
SRI.JEFF JOSEPH
RESPONDENTS/PETITIONER & 1ST RESPONDENT:
1 ELIZEBATH K. DOMINIC,
AGED 35 YEARS
D/O.K.J.KUNJUKUNJU, KATTIKKATTU HOUSE,
THAICKAL P.O., CHERTHALA, ALLEPPEY-688539.
2 SUJITH TOMY,
S/O.TOMY CYRIL, AGED 39 YEARS,
PALIYATHAYIL HOUSE, THAICKAL P.O.,
CHERTHALA, ALLEPPEY-688539.
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
20.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
OP (FC) No.107/2019 -2-
C.K. ABDUL REHIM, J.
&
T.V. ANILKUMAR, J.
-------------------------------------------------
O.P. (FC) No. 107 OF 2019
-------------------------------------------------
DATED THIS THE 20th DAY OF FEBRUARY, 2019
JUDGMENT
Abdul Rehim, J:
Invoking the supervisory jurisdiction vested on this court under Article 227 of the Constitution of India, the petitioners are seeking to quash O.P. No.73/2019 and I.A. No.148/2019 filed in the said case before the Family Court, Alappuzha.
2. O.P. 73/2019 was filed before the court below by the 1 st respondent, against the petitioners and the 2 nd respondent herein, seeking recovery of a sum of Rs. 28,80,000/- along with interest. I.A. 148/2019 was filed seeking attachment before judgment of the plaint schedule property belonging to the petitioners and the 2nd respondent, inorder to secure the plaint claim. Contention of the petitioners is that, the original petition as well as the application for attachment are not maintainable before the Family Court, Alappuzha, in view of the consented order passed by the Family Court of Western Australia on 18-06- 2018, which was registered before the Family Court of Western Australia at Perth by its Registrar.
OP (FC) No.107/2019 -3-
3. We are of the considered opinion that, the relief sought for cannot be granted in exercise of jurisdiction vested on this court under Article 227, which is supervisory and visitorial in nature. If the petitioners have a case that O.P. 73/2019 is not maintainable before the Family Court, it is for them to approach the said court, seeking for a decision on the question of maintainability of the said case, as a preliminary issue. It is for the Family Court, Alappuzha to consider the question of maintainability, if it is called upon to be decided as a preliminary issue, in case it can be decided solely based on legal issue. The above original petition filed without resorting to such a remedy is misconceived and cannot be entertained.
4. Hence the above original petition is hereby dismissed, with liberty reserved to the petitioners to approach the Family Court seeking for a decision on the question of maintainability of the case as a preliminary issue.
Needless to observe that if any such approach is made, it is for the Family Court to take an appropriate decision, at the earliest possible.
Sd/-
C.K.ABDUL REHIM, JUDGE.
Sd/-
T.V.ANILKUMAR, JUDGE.
AMG OP (FC) No.107/2019 -4- APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PETITION BEARING NO. OP 73/2019 ON THE FILES OF THE HONOURABLE FAMILY COURT, ALLEPPEY. EXHIBIT P2 TRUE COPY OF THE INTERLOCUTORY APPLICATION BEARING NO. IA. 148/2019 IN OP 73/2019 ON THE FILES OF THE HONOURABLE FAMILY COURT, ALLEPPEY.
EXHIBIT P3 TRUE COPY OF THE SETTLEMENT/MINUTE OF CONSENT ORDERS DATED 18/6/2018 IN FILE NO. PTW 1460/2018 ON THE FILES OF FAMILY COURT OF WESTERN AUSTRALIA AT PERTH DULY SIGNED BY THE 1ST AND 2ND RESPONDENTS. EXHIBIT P4 TRUE COPY OF THE CONCILIATION CONFERENCE FILE NOTE ISSUED BY THE REGISTRAR OF FAMILY COURT OF WESTERN AUSTRALIA AT PERTH.
EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE PRINCIPAL REGISTRAR OF FAMILY COURT OF WESTERN AUSTRALIA AT PERTH IN FILE NO. PTW 1460/2018 ON THE FILES OF THE FAMILY COURT OF WESTERN AUSTRALIA AT PERTH RESPONDENTS' EXHIBITS NIL AMG