Kerala High Court
Bincy Scaria vs Joseph Josemon on 19 December, 2014
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY,THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937
OP (FC).No. 88 of 2016 (R)
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E.A.NO.183/2015 IN E.P.NO.9/2015 IN O.P.NO.654/2002 of FAMILY COURT,
THODUPUZHA.
PETITIONER:
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BINCY SCARIA, AGED 33 YEARS
W/O.JOSEPH, THEKKEL HOUSE, PRAVITHANAM.P.O
PALA.
BY ADVS.SRI.M.NARENDRA KUMAR
SMT.S.SUCHITRA
RESPONDENT:
--------------------
1. JOSEPH JOSEMON,, AGED 34 YEARS
S/O.GEORGE, KANJARAKOMBIL HOUSE, ARIIKKUZHA
VAZHITHALA.P.O, MANAKKAD, THODUPUZHA
PIN-685590.
2. GEORGE,
S/O.CHERIAN, KANJARAKOMBIL HOUSE, ARRIKKUZHA
VAZHITHALA.P.O, MANAKKAD, THODUPUZHA
PIN-685590.
3. ROSAMMA GEORGE,
W/O.GEORGE, KANJARAKOMBIL HOUSE, ARRIKKUZHA
VAZHITHALA.P.O, MANAKKAD, THODUPUZHA
PIN-685590.
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (FC).No. 88 of 2016 (R)
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APPENDIX
PETITIONER'S EXHIBITS
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P1 THE TRUE COPY OF THE E.P.9/2015 IN THE FAMILY COURT,THODUPUZHA
P2 THE TRUE COPY OF THE JUDGMENT DATED 19.12.2014 IN MATAPPEAL
NO.199/2007
P3 THE TRUE COPY OF THE OBJECTION IN E.P.9/2015,DATED 04.11.2015
P4 THE TRUE COPY OF E.A.183/2015 IN E.P.9/2015 DATED 31.05.2015.
RESPONDENTS' EXHIBITS : NIL
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//TRUE COPY//
P.A. TO JUDGE
smv
C.K. ABDUL REHIM
&
SHAJI P. CHALY, JJ.
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O.P.(FC) No.88 of 2016
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Dated this the 1st day of March, 2016.
JUDGMENT
Shaji P. Chaly, J.
In view of the limited order we propose to pass notice to the respondents is dispensed with.
2. This original petition is filed seeking direction to the Family Court, Thodupuzha for an early disposal of Ext.P1 execution petition and Ext.P4 execution application. Petitioner is the decree holder and respondents are the judgment debtors in O.P.No.654/2002 on the files of the Family Court, Ettumanoor. O.P.No.654/2002 was filed for return of money and gold ornaments by the petitioner herein. O.P.No.222/2004 was also filed by the petitioner herein for dissolution of marriage which were decreed, against which respondents preferred Mat.Appeal Nos.199/ 2007 and 211/2007 respectively before this court. While the appeals were so pending, the petitioner and the 1st respondent have entered into a compromise, evident from Ext.P2 and accordingly a decree was passed in the said appeal in terms O.P.(FC) No.88 of 2016 2 of the compromise.
3. Thereafter petitioner has filed E.P.No.9/2015 in O.P.No.654/2002 before the Family Court, Thodupuzha. In the said execution petition, 1st respondent has filed Ext.P3 objection. Respondents 2 and 3 have filed E.A No.183/2015 seeking to vacate attachment of an extent of 86.88 Ares of property situated in re-survey No.340/3 of Manakad Village, Thodupuzha Taluk owned by the 2nd respondent. Petitioner is seeking a direction to the Family Court to dispose of the execution petition and other proceedings in a speedy manner and within a time frame fixed by this court.
4. Ext.P1 execution petition is filed by the petitioner seeking to execute Ext.P2 compromise decree filed by this court in Mat.Appeal No.199/2007 by which the 1st respondent has agreed to pay an amount of Rs.10,00,000/- within three months from the date of the said agreement viz.25.11.2014 and failing which the petitioner is entitled to realise an amount of Rs.13,00,000/- from the 1st respondent by executing the decree. In the compromise agreement the petitioner and 1st respondent affixed their signatures and attested by the respective counsel. Even though respondents 2 and 3 were parties to the said appeal O.P.(FC) No.88 of 2016 3 in the compromise agreement their names are shown but against which it is noted "not necessary". It is in the background of the said settlement the 2nd respondent has filed Ext.P4 in E.A. No.183/2015 in E.P.No.9/2015 to vacate the attachment of the property specified above.
5. The sole relief that is sought for is to dispose of Ext.P1 execution petition and Ext.P4 execution application at the earliest. It is the case of the petitioner that even though 14 years have elapsed since the date of filing of the original petition, petitioner is unable to enjoy the fruits of the decree and the execution proceedings are protracted by the respondents without any reason and deliberately to deprive the petitioner from enjoying the fruits of the decree. It is also contended that Ext.P4 EA is not maintainable under law.
6. Any how maintainability of Ext.P4 is a matter to be considered by the Family Court, Thodupuzha taking into account Ext.P2 terms of compromise and the decree passed thereunder and we are not expressing any opinion on the same. However taking into account the contention of the petitioner that the execution proceedings are delayed consequent to the pendency of Ext.P4 execution application, we feel that a direction to O.P.(FC) No.88 of 2016 4 dispose of the same can be issued. It is true that unnecessary protraction of execution petition is detrimental to the petitioner/decree holder. Therefore, in the fitness of things and taking into account the facts and circumstances, we think it is only just and proper that a direction can be issued to the Family Court, Thodupuzha to dispose of E.A. No.183/2015 in E.P. No.9/2015 in O.P.No.654/2002 within a time frame. Therefore, we direct the Family Court, Thodupuzha to take on board E.A. No.183/2015 in E.P.No.9/2015 in O.P.No.654/2002 and dispose of the same within a period of one month from the date of receipt of a copy of this judgment. Needless to say the execution court will take necessary steps thereafter to proceed with the execution petition and dispose of the same in an expeditious manner, in accordance with law.
Original petition is disposed of accordingly.
Sd/-
C.K. ABDUL REHIM JUDGE Sd/-
SHAJI P. CHALY
//true copy// JUDGE
smv P.A. To Judge
2.3.2016