Unnikrishnan vs Sunitha on 27 September, 2018

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Kerala High Court

Unnikrishnan vs Sunitha on 27 September, 2018

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 R. NARAYANA PISHARADI

   THURSDAY ,THE 27TH DAY OF SEPTEMBER 2018 / 5TH ASWINA, 1940

                       OP (FC).No. 525 of 2018

 AGAINST THE EXECUTION PROCEEDINGS IN EP NO.6/2017 IN OP 267/2014
                    of FAMILY COURT,ERNAKULAM



PETITIONER:


              UNNIKRISHNAN
              AGED 40 YEARS
              S/O ASOKAN, ADIYODI HOUSE, KODANNUR DESOM, THRISSUR
              DISTRICT.

              BY ADVS.
              SRI.C.A.CHACKO
              SMT.C.M.CHARISMA
              SMT.MEGHA K.XAVIER



RESPONDENT:
              SUNITHA
              AGED 37 YEARS
              W/O UNNIKRISHNAN, PANAYIL HOUSE, VENDURUTHY,
              MATSYAPURI P.O., KOCHI -682 029




     THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
     27.09.2018, THE COURT ON THE SAME DAY PASSED THE
     FOLLOWING:
 O.P.(FC) No.525/2018
                                          2




                                      JUDGMENT

C.K.Abdul Rehim,J The petitioner is invoking the supervisory jurisdiction vested on this court under Article 227 of the Constitution of India, seeking for a declaration that the Family Court, Ernakulam is not having territorial jurisdiction to entertain E.P.No.6/2017 in O.P.No.267/2014 for taking steps against the person of the petitioner and against his properties, which situates outside the local limits of that court. Inter alia, the petitioner is seeking direction to the Family Court to keep in abeyance all further proceedings in E.P.No.6/2017.

2. The parties herein have settled the original petition, O.P.No.267/2014, before the Family Court through a mediation. A 'Memorandum of Agreement' executed under Section 89 of the Code of Civil Procedure was produced before that court, based on which O.P.No.267/2014 was decreed. The respondent herein filed E.P.No.6/2017 alleging that the petitioner had violated the terms of the decree and by praying the following reliefs:

O.P.(FC) No.525/2018

"a) Rule 22 notice may be issued to the Judgment Debtor;

b) Direction may be given to the respondent to register the settlement deed in favour of the Decree Holder by bearing half of the expenses and if the respondent is not ready to register the same, the Decree Holder may be permitted to register the document through the Court.

c) Issue Rule 37 notice to the Judgment Debtor if the respondent/judgment debtor is not ready to pay the maintenance amount and thereafter he may be ordered to be detained in Civil Prison until causing payment of the decree debt;

d) The interests of the judgment debtor in the portion of the immovable property held by him as per the decree may be hereinafter attached and may be sold by Court and summons may be issued to him to bring into Court all documents in his possession;

e) That Decree Holder may be given liberty to bid at the sale of the properties attached in execution of the subject decree, at such price as may be fixed by the Court; and

f) That such other further reliefs may also be granted as deemed fit and necessary in the circumstances of the case."

3. The petitioner entered appearance in the Execution Petition and filed counter, inter alia contending that the Family Court at Ernakulam has no territorial jurisdiction to execute the O.P.(FC) No.525/2018 4 decree in question, because the property sought to be attached and sold situates within the limits of Thrissur District. He had also filed E.A.No.131/2018 before that court seeking to hear and decide the preliminary issue regarding territorial jurisdiction of the Family Court, Ernakulam, before proceeding with further steps in the Execution Petition. It is stated that, without considering the said application, the Family Court posted the case to 14.11.2018.

4. We take note of the fact that, E.A.No.131/2018 was seen filed only on 14.09.2018. There is nothing to indicate that notice was served on the respondent in that E.A. However, even according to the petitioner, the matter is posted for consideration to 14.11.2018. We do not find any reason to presume that the Family Court will not consider E.A.No.131/2018 or to presume that the Family Court will proceed against the property by ignoring the objections raised disputing the territorial jurisdiction of that court.

5. Hence we are of the opinion that no specific direction is warranted in this case for consideration of E.A.No.131/2018. Since the Family Court has not yet considered the objections O.P.(FC) No.525/2018 5 with respect to the territorial jurisdiction, it is not justifiable or proper for this court to make a declaration that E.P.No.6/2017 is not maintainable before that court. It is left open to the petitioner to agitate such an issue before the Family Court and to seek appropriate orders.

The above original petition is disposed of based on the observations as mentioned above.

(sd/-) C.K.ABDUL REHIM, JUDGE (sd/-) R.NARAYANA PISHARADI, JUDGE jsr O.P.(FC) No.525/2018 6 APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF MEMORANDUM OF SETTLEMENT EXECUTED BY THE PETITIONER AND RESPONDENT WITH TYPED COPY.

EXHIBIT P2 TRUE COPY OF EP.NO.6/2017 FILED BY RESPONDENT BEFORE THE FAMILY COURT, ERNAKULAM.

EXHIBIT P3 TRUE COPY OF COUNTER DATED 6.3.17 FILED BY PETITIONER IN EP.NO.6/2017.

EXHIBIT P4 TRUE COPY OF E.A.NO.131/2018 FILED BY PETITIONER BEFORE THE FAMILY COURT, ERNAKULAM.

RESPONDENT'S EXHIBITS :

NIL TRUE COPY PS TO JUDGE

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