Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 10TH DAY OF JANUARY 2023 / 20TH POUSHA, 1944 AGAINST THE ORDER/JUDGMENT IN MC 330/2011 OF FAMILY COURT, PALAKKAD PETITIONER/RESPONDENT: SURESH K AGED 55 YEARS S/O.KRISHNANKUTTY, KUNNATHU VEEDU, KATTUKULAM POST, MANGALAM KUNNU, PALAKKAD, PIN - 679514 BY ADVS. K.S.SREERAJ J.RAMKUMAR RESPONDENTS/PETITIONERS: 1 VASANTHA K AGED 48 YEARS W/O.SURESH K, CHARANATHKALAM, KODUVAYUR, PALAKKAD, PIN - 678501 2 AKSHAY S AGED 21 YEARS S/O.SURESH K, CHARANATHKALAM, KODUVAYUR, PALAKKAD, PIN - 678501 BY ADV V.A.JOHNSON (VARIKKAPPALLIL) V A THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 10th day of January, 2023 This Original Petition (criminal) has been filed under Article 227 of the Constitution of India, challenging Exts.P12 to P15 orders dated 15.11.2020, passed by the Family Court, Palakkad.
2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents.
3. At the time of admission of this original petition, the
learned counsel for the petitioner submitted that the balance outstanding as on 22.12.2022 would come to Rs.42,700/- (Rupees forty two thousand and seven hundred only). Out of which, Rs.10,000/- only was deposited.
4. It is submitted by the learned counsel for the
respondents that, as on today, as per 9 CMPs filed to execute the order in MC No.330/2011, Rs.3,40,000/- (Rupees three lakh forty thousand only) is the outstanding amount. The learned counsel placed a statement with clarity to appraise the said contention.
5. Whereas the learned counsel for the petitioner also filed a narrative statement contending that as on today, balance is only Rs.41,710/-.
6. According to the learned counsel for the petitioner,
in OP No.590/2015, the Family Court granted maintenance at the rate of Rs.3,000/- and Rs.2,500/- for a period from 03.08.2012 to 04.08.2015 (past maintenance) and also future maintenance at the same rate from 05.08.2015. Similarly, after the order in MC No.330/2011 dated 21.03.2013, the Family Court granted maintenance at the rate of Rs.3,500/- and Rs.2,500/- each to the respondents respectively. It is submitted further that while executing the decree in OP consideration of Rs.3,00,100/- (Rupees three lakh and one hundred only) and thereby the arrears of past maintenance for the period from 03.08.2012 to 04.08.2015 was adjusted and the balance out of the sale price was adjusted towards future maintenance upto 03.03.02.2016. According to the learned counsel for the petitioner, the arrears calculated in the nine CMPs on the basis of adjustment of payment in the OP and MC together.
7. Whereas it is submitted by the learned counsel for the respondents that order passed in MC sought to be executed by filing 9 CMPs viz., CMP Nos.78/2016, 261/2016, would come to Rs.3,40,000/-.
8. Going by the orders impugned, it could be gathered
that the Family Court disallowed the prayer of adjustment on the ground that the respondents herein filed OP No.590/2015 and MC 330/2011 for maintenance, but rightly or wrongly, the decree was passed in O.P.No.590/2015 and therefore, the remedy of the petitioner was to set aside the decree and the prayer for adjustment is liable to be rejected.
9. It is an admitted fact that either in the order of OP
No.590/2015 or in MC No.330/2011 are under challenge before this Court in any manner and therefore, both the decree/order attained finality. How far the plea of adjustment can be considered in the context of the fact discussed is a matter to be decided by the Family Court, afresh, following the ratio in Rajnesh v. Neha and another (ILR 2020(4) Kerala 579) and other decisions dealing with adjustment. Therefore, Exts.P12 to P15 orders passed by the Family Court stands set aside with opportunity to the petitioner as well as the respondents to file statements showing the balance outstanding amount. The Family Court is directed to consider the adjustment, if any, as per the settled law and consider the petitions, afresh, and pass orders therein. Meanwhile, there shall be a direction to the petitioner to clear the balance outstanding, admittedly, to the tune of Rs.41,720/- within a period of two weeks from the date of appearance of the parties before the Family Court. Both parties are directed to appear before the Family Court, Palakkad on 02.02.2023 Registry is directed to forward a copy of this order to the court below concerned, within two weeks, for information and compliance. Sd/- A. BADHARUDEEN JUDGE nkr APPENDIX OF OP(CRL.) 662/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 21/03/2013 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P2 TRUE COPY OF THE ORDER DATED 30/11/2015 IN O.P.NO.590/2015 ON THE FILE OF FAMILY COURT, PALAKKAD
Exhibit P3 TRUE COPY OF THE CERTIFICATE DATED
04.07.2016 ISSUED BY THE
SUPERINTENDENT, CENTRAL PRISON &CORRECTIONAL HOME, VIYYUR EVIDENCING THE IMPRISONMENT OF THE PETITIONER Exhibit P4 TRUE COPY OF THE C.M.P. NO.78/2016 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P5 TRUE COPY OF THE OBJECTION IN C.M.P. NO.78/2016 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P6 A TRUE COPY OF THE C.M.P. NO.261/2016 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P7 A TRUE COPY OF THE OBJECTION IN C.M.P. NO. 261/2016 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P8 TRUE COPY OF THE CMP.NO.31/2018 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P9 A TRUE COPY OF THE OBJECTION IN CMP.NO.31/2018 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P10 TRUE COPY OF THE CMP.NO.32/2018 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P11 TRUE COPY OF THE OBJECTION IN CMP.NO.32/2018 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD Exhibit P12 A TRUE COPY OF THE ORDER DATED MC.NO.330/2011 OF THE FAMILY COURT, PALAKKAD Exhibit P13 A TRUE COPY OF THE ORDER DATED MC.NO.330/2011 OF THE FAMILY COURT, PALAKKAD Exhibit P14 TRUE COPY OF THE ORDER DATED 15/11/2022 IN CMP.NO.31/2018 IN MC.NO.330/2011 OF THE FAMILY COURT, PALAKKAD Exhibit P15 TRUE COPY OF THE ORDER DATED 15/11/2022 IN CMP.NO.32/2018 IN MC.NO.330/2011 OF THE FAMILY COURT, PALAKKAD RESPONDENT EXHIBITS EXHIBIT R1(a) TYPED STATEMENT SHOWING THE PARTICULARS OF ARREARS IN M.C. NO. 330/2011 ON THE FILE OF THE FAMILY COURT PALAKKAD