Kerala High Court
Treasa Bency @ Bency.N.L vs Dr.Preceline George @ Antony Preceline ... on 30 July, 2021
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque, Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
MAT.APPEAL NO. 378 OF 2019
AGAINST THE PORTION OF JUDGMENT IN OP 1698/2009 OF FAMILY
COURT,ERNAKULAM WHICH DIRECTS THE APPELLANTS TO RTURN THE
GOLD ORNAMENTS ALLEGEDLY GIVEN BY THE 1ST RESPONDENT AS PER
THE COUNTER CLAIM
APPELLANT/PETITIONER:
TREASA BENCY @ BENCY N.L.
AGED 35 YEARS
D/O.N.V.LONAPPAN, FORMER W/O.DR.PRECELINE GEORGE,
AGED 35 YEARS, NAISSERY HOUSE, NMO.2391/60, VADHYA
ROAD, KALOOR, ERNAKULAM, PIN-682 017.
BY ADVS.
K.V.BHADRA KUMARI
SMT.ANILA GEORGE
RESPONDENTS/RESPONDENTS:
1 DR.PRECELINE GEORGE @ ANTONY PRECELINE GEORGE
AGED 38 YEARS
S/O.A.T.GEORGE, ARAKKAL HOUSE, DOOR NO.36/3137,
KATHRIKADAVU, KALOOR P.O., ERNAKULAM, COCHIN-17,
RESIDING AT SURYA GARDENS, FLAT NO.5,
MAROTTICHUVADU, EDAPPALLY P.O., COCHIN-24,
ERNAKULAM, WORKING AS ASST.SURGEON, REG.37755,
PRIMARY HEALTH CENTRE, ELAMBULASSERY, PALGHAT.
C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 &
O.P.(FC).No.154/2019
-:2:-
2 MARGERATE PREMY
AGED 63 YEARS
W/O.A.T.GEORGE, ARAKKAL HOUSE, DOOR NO.36/3137,
KATHRIKADAVU, KALOOR P.O., ERNAKULAM, COCHIN-17.
3 A.T.GEORGE
AGED 68 YEARS
ARAKKAL HOUSE, DOOR NO.36/3137, KATHRIKADAVU,
KALOOR P.O., ERNAKULAM, COCHIN-17, RESIDING AT
SURYA GARDENS, FLAT NO.5, MAROTTICHUVADU,
EDAPPALLY P.O., COCHIN-24.
BY ADVS.
SRI.SANTHAN V.NAIR
SMT.MARGERET K. JAMES
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION
ON 30.07.2021, ALONG WITH OPFC 154/2019 THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 &
O.P.(FC).No.154/2019
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
OP (FC) NO. 154 OF 2019
AGAINST THE ORDER IN EP 7/2016 IN OP 1698/2009 OF FAMILY
COURT,ERNAKULAM, ERNAKULAM
PETITIONER/JUDGMENT DEBTOR:
TREASA BENCY @ BENCY.N.L.,AGED 26 YEARS
W/O.DR.PRECELINE GRORGE, (MARRIAGE ANNULLED ON
31/7/2012), D/O.LATE LONAPPAN, AGED 31 YEARS,
NAISSERY HOUSE, NO.2391/60, VADHYA ROAD, KALOOR,
ERNAKULAM.
BY ADVS. K.V.BHADRA KUMARI, SMT.P.V.RADHAMANI
RESPONDENT/DECREE HOLDER:
DR.PRECELINE GEORGE @ ANTONY PRECELINE GEORGE,
AGED 34 YEARS, S/O.A.T.GEORGE, ARAKKAL HOUSE,
DOOR NO.36/3137, KATHRIKADAVU, KALOOR P.O.,
ERNAKULAM, COCHIN - 17, RESIDING AT SURYA
GARDENS, FLAT NO.5, MAROTTICHUVADU, EDAPPALLY
P.O., COCHIN - 24, ERNAKULAM, WORKING AS
ASST.SURGEON, REG.NO.37755 PRIMARY HEALTH CENTRE,
ELAMBULASSERY, PALGHAT.
BY ADVS. MARGERAT K. JAMES, SRI.SANTHAN V.NAIR
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
30.07.2021, ALONG WITH MA 378/2019 THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 &
O.P.(FC).No.154/2019
-:4:-
J U D G M E N T
Dated this the 30th day of July, 2021 A.Muhamed Mustaque,J.
Mat.Appeal No.378/2019 is filed along with an application to condone the delay of more than six years, challenging the decree awarded in a counter claim in OP No.1698/2009 on the files of Family Court, Ernakulam. The appellant is the petitioner in the above Original Petition. The above original petition was decreed and the respondents raised a counter claim in the same. That appears to have sustained to a certain extent. We shall advert the same separately in the connected matter OP(FC) No.154/2019.
2. There was a challenge against the grant of decree in favour of the appellant in OP No.1698/2009 at the instance of the respondents in Mat.Appeal No.651/2012. That appeal was disposed after hearing the appellant on 4/7/2013. Appellant has never chosen to raise a cross objection or cross appeal in that appeal as against the decree alleged to have been granted in a C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 & O.P.(FC).No.154/2019 -:5:- counter claim. The present appeal is filed when respondents filed an Execution Petition before the Family Court to execute the alleged decree granted in the counter claim. There is a serious dispute in regard to the execution of the decree granted in the counter claim. That is the issue in OP No.154/2019 filed by the appellant.
3. As regards the delay involved in filing the Mat.Apepal, we are of the view that delay cannot be condoned for the simple reason that appellant failed to challenge the alleged decree passed in the counter claim at the appropriate time. Appellant was given notice in the appeal filed by the respondents against the decree in the same proceedings and the proceedings were concluded in 2013. The petitioner came up with this appeal only in 2019. Therefore we are of the view that delay cannot be condoned. The delay petition is hence dismissed. Consequently, the appeal is also dismissed.
4. In regard to OP(FC) No.154/2019, it is appropriate to refer the preceding paragraph of the operative portion of the judgment in OP No.1698/2009. C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 & O.P.(FC).No.154/2019 -:6:- "21. Regarding counter claim, RW1 admits in cross examination that she is in possession of the gold ornaments claimed under counter claim, therefore, I feel that no elaborate discussion is necessary on this issue. Hence it is found that PW1 is entitled to get it back. In view of the aforesaid reasons, I am to hold that the petitioner is succeeded in proving the entrustment of cash and gold and therefore, she is entitled to the decree as prayed for. The points are found accordingly."
5. The Family Court after adverting to certain portion of the admission made by the appellant in regard to possession of gold ornaments, allowed the counter claim. According to the respondents, this is an admission of claims raised by the respondents in the counter claim. According to the appellant, it is not an admission of any counter claim, it is only an admission of the gold ornaments in her possession. However, appellant admitted possession of 2 grams of thali belonged to the respondent/husband and expressed her willingness to return the same to the respondent/husband.
6. In execution proceedings, produced as Ext.P4 order, the Family Court concluded that respondents are entitled to recover 11 sovereigns. This was with C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 & O.P.(FC).No.154/2019 -:7:- reference to the claim in counter claim and the alleged admission made during cross examination.
7. Essentially the issue is regarding the execution of the decree. The issue is to be decided by the executing court as per Section 47 of the CPC. The execution court has to first decide as to what is the admission made by the appellant. It is essential in the light of the nature of decree granted in sustaining counter claim. The Calculation of 11 sovereigns with reference to counter claim is not proper. Calculation has to be very specific with reference to the admission of any ornaments belonging to the respondents in possession of the appellant made in the cross examination. Therefore, proper appreciation of such admission is required while considering the point of executability of the decree. We find that the execution court had not adverted to such aspects which are required for execution of the decree.
8. Therefore, we set aside Ext.P4 and remand the matter back to the Family Court for further consideration. Parties are directed to appear before the Family Court on 26/8/2021. On that day, petitioner shall return 2 grams of thali in her possession and C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 & O.P.(FC).No.154/2019 -:8:- that shall be accepted by the respondents without prejudice to other claims. Family Court shall, after adverting to the nature of claims made, pass appropriate orders in execution petition, within a further period of three months.
9. In the light of the above, the delay petition and Mat.Appeal No.378/2019 are dismissed. OP(FC) No.154/2019 is allowed and the impugned order is set aside.
Parties are directed to appear before the Family Court on 26/8/2021.
Sd/-
A.MUHAMED MUSTAQUE JUDGE Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
Kp True copy
P.A. To Judge
C.M.Appln. No.1/2019, Mat.Appeal No.378/2019 & O.P.(FC).No.154/2019 -:9:- APPENDIX OF OP (FC) 154/2019 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE TYPED COPY OF THE DECREE PASSED BY THE FAMILY COURT, ERNAKULAM IN O.P.NO.1698/2009.
EXHIBIT P2 A TRUE COPY OF THE E.P.NO.7/2016 IN O.P.NO.1698/2009 FILED BY THE RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER HEREIN IN E.P.NO.7/2016. EXHIBIT P4 CERTIFIED COPY OF THE ORDER PASSED BY THE FAMILY COURT, ERNAKULAM IN E.P.NO.7/2016 IN O.P.NO.1698/2009 DATED 4/1/2019.
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT IN O.P.NO.1698/2009 ALONG WITH O.P.NO.1561/2009 AND O.P.NO.919/2010 DATED 31/7/2012.
EXHIBIT P6 A TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN MAT.APPEAL NO.651/2012 ALONG WITH MAT.A.NO.29/2013 & 85/2013.
EXHIBIT P7 A TRUE COPY OF THE DEPOSITION OF THE PETITIONER BEFORE THE COURT BELOW. EXHIBIT P8 TRUE COPIES OF BILL FOR PURCHASE OF GOLD ORNAMENTS ISSUED IN THE NAME OF THE PETITIONER'S FATHER.