Full Judgment
Pius C.Kuriakose, J.
1. Under challenge in this appeal is the order passed by the Family Court, Thrissur in E.A. No.93/2009 in E.P. No.50/2008 in O.P.No.866/2005 on the files of that Family Court. E.A. No.93/2009 was filed by the appellant who was the younger son of one Kousaliya , who was the decree holder(petitioner) in E.P. No.50/2008. The E.P. was for recovery of amounts awarded by the Family Court by way of maintenance. It was the appellant, the younger son, who was prosecuting the E.P. on behalf of his mother Kousaliya in his capacity as the power of attorney holder. The Family Court dismissed the impleadment application taking the view that the appellant who is the power of attorney holder cannot be allowed to step into the shoes of the deceased mother as the right to get maintenance was purely a personal right of the deceased mother. According to the learned Family Court , the right of Kousaliya to recover maintenance came to an end once she breathed her last.
2. The submission of the learned counsel for the appellant before us was that under the maintenance order passed by the Family Court, the appellant, the younger son of Kousalya, as well as the first respondent, the elder son, were liable to maintain the mother. 50% of the maintenance amount was payable by the respondent while 50% was payable by the appellant. The respondent did not maintain the mother at all. It was the appellant who expended all the amounts including the amounts which should have been paid by the respondent. The appellant sought impleadment not in his capacity as the power of attorney holder of the deceased mother. The appellant sought his impleadment for pursuing the E.P. to the extent it relates to the liability of the respondent to pay his part of the amount. In that way, cause of action survived in favour of the appellant so submitted the learned counsel.
3. We do find some force in the above submissions of Mr. M.K.Dileep Kumar learned counsel for the appellant. A reading of the affidavit in support of the impledment petition will also show that he was claiming impleadment not on the basis of the power of attorney which was executed by the mother in his favour. On the contrary, he claimed impleadment on the basis that he is entitled to recover that part of the maintenance amount which have to be paid by the respondent and not paid by him. At the same time, we cannot agree with Mr.Dileepkumar that the appellant is entitled to recover the amount in the present E.P. We are of the view that the remedy of the appellant lies before the Regular Civil Court. Hence, we relegate the appellant to that remedy.
We make it clear that if the appellant files a suit against the respondent for recovering the portion of the maintenance amount which is due to him due to non payment by the respondent to mother Kousaliya within a period of one month from today, the time during which the E.P. was pending before the Family Court together with the time during which this appeal was pending before this court and the time till the filing of the suit will be excluded from reckoning for limitation under Section 14 of the Indian Limitation Act.