Narayanan Namboodiri Vs. Saraswathy Thaliyakkattil Mohanan and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/732363
SubjectFamily
CourtKerala High Court
Decided OnOct-13-2009
Case NumberMat. Appeal No. 90 of 2007
Judge R. Basant and; M.C. Hari Rani, JJ.
Reported inAIR2010Ker42
ActsFamily Courts Act, 1984 - Sections 7 and 18; Transfer of Property Act - Sections 52; Code of Criminal Procedure (CrPC) , 1973; Code of Civil Procedure (CPC) , 1908 - Order 21, Rule 58 and 58(2)
AppellantNarayanan Namboodiri
RespondentSaraswathy Thaliyakkattil Mohanan and ors.
Appellant Advocate Millu Dandapani, Adv.
Respondent Advocate M.A.T. Pai, Adv.
DispositionAppeal allowed
Cases ReferredJoseph v. Marium
Excerpt:
- dowry prohibition act, 1961 -- sections 3, 4 & 6: [mrs. manjula chellur & a.s. pacchapure, jj] offences under when once the accused are not found guilty of the offence punishable under section 304-b of i.p.c., they cannot be saddled with offence punishable under section 3 & 4 of the d.p. act as a subsequent demand was not in relation to the dowry agreed at the time of marriage. hence, no offence under section 4 of the d.p. act is made out. - in this view of the matter, certainly, the family court 'has jurisdiction to consider a claim petition by a stranger like the appellant herein under order 21, rule 58, c. their lordships took note of the circumstance that an independent suit by a stranger before a civil court would have been perfectly maintainable as the same would not fall within the sweep of section 7. it is only in that context that the observations in paragraph 6 were made by the division bench while considering point no. 11. we are satisfied that the impugned order calls for interference for the above reasons.r. basant, j.1. respondents 1 and 2 had initiated proceedings for maintenance before the family court against the 3rd respondent herein, their husband/father. it is unnecessary to advert to the details and sequence of events in that litigation. suffice it to say that the family court ultimately allowed the said claim in o. p. no. 761/99 directing payment of maintenance at the rate of rs. 1,000/- and 750/- per mensem respectively to respondents 1 and 2 creating a charge on the property. respondents 1 and 2 sought to put that order into execution and filed e. p. no. 42/2000. in e. p. no. 42/2000, the appellant herein filed e. a. no. 113/2001 under order 21, rule 58 contending that the property is not liable to be proceeded with in execution, as he has right, title and interest over the property to the exclusion of the 3rd respondent.2. when that e. a. came up for consideration before the family court, the family court by the impugned order held that the claim petition is not maintainable. we extract the order of the family court below.claim petition filed by the stranger is not entertainable, according to the decree holder. counsel placed reliance on joseph v. marium thomas : 2006 (1) klt 894 : air 2006 ker 212. as per the cited decision, 'a stranger who is a purchaser of the property from the husband cannot maintain an application before the family court for the property'. claim is to be adjudicated by the civil court. relied on case is squarely applicable, hence claim petition dismissed.3. the learned counsel for the appellant submits that the court below had grossly erred in appreciating the dictum in joseph v. marium thomas : 2006 (1) klt 894 : air 2006 ker 212. according to the learned counsel for the appellant, the dictum in that case is not that the order/decree of a family court cannot be executed by the family court. the dictum is not that a claim by a third party raised in the course of execution of the decree cannot be considered and decided by the family court. the family court grossly erred in construing the dictum in : 2006 (1) klt 894 : air 2006 ker 212 and in concluding that a claim petition by a stranger/non party under order 21 rule 58, is not maintainable before the family court, contends counsel.4. we have heard both counsel. the learned counsel for the appellant first of all relies on section 18 of the family courts act. we extract the same below:18. execution of decrees and orders.- (1) a decree or an order (other than an order under chapter ix of the code of criminal procedure, 1973 (2 of 1974), passed by a family court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner as is prescribed by the code of civil procedure, 1908 (5 of 1908) for the execution of decrees and orders.(2) an order passed by a family court under chapter ix of the code of criminal procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that code.(3) a decree or order may be executed either by the family court which passed it or by the other family court or ordinary civil court to which it is sent for execution.5. the learned counsel contends that there can be no semblance of doubt on the question that an order/decree passed by the family court can be executed by the family court. we agree with the learned counsel. powers under order 21, c.p.c. are available to a family court for execution of its orders passed except the one passed under chapter ix of the cr. p. c.6. the learned counsel contends that if the family court has jurisdiction to execute its orders, the provisions of order 21, rule 58, c.p.c. must automatically apply and a claimant who sets up right, title and interest over the property to the exclusion of the judgment debtor has the right and the obligation to raise his claim before the execution court, i.e., the family court. the learned, counsel further points out that in the light of order 21, rule 58(2) which we extract below such a claimant does not have the option to go to any other court to establish the claim by filing a separate suit.58(2). all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the court dealing with the claim or objection and not by a separate suit.(emphasis supplied)7. we agree with the learned counsel. the conclusion appears to be inevitable in these circumstances that under section 18 of the family courts act, the family court is the court which can execute an order/decree passed by it. when the family court has power and jurisdiction to execute its order, obviously the provisions of order 21 would apply and under order 21, rule 58, c. p. c. claims made by strangers will also have to be adjudicated by the family court (execution court) and not in any other court by any separate suit. in this view of the matter, certainly, the family court 'has jurisdiction to consider a claim petition by a stranger like the appellant herein under order 21, rule 58, c.p.c. there can be absolutely no doubt on that proposition of law.8. the learned judge of the family court appears to have felt that the decision in joseph v. marium air 2006 ker 212 (supra) lays down that such a claim by a stranger is not maintainable at all. the learned counsel for the appellant contends and we accept that the division bench in joseph v. marium was not considering an identical question at all. the question that arose before the division bench in that case was whether the earlier proceedings before an execution court (civil court) and the orders passed therein would bind the parties, notwithstanding the fact that the family court had jurisdiction to consider the same. the question that arose for consideration in that case was whether the earlier orders passed by the civil court in execution of its own decree which orders had become final after challenge before this high court can be ignored on the ground that the civil court lacked jurisdiction inherently to execute its own decree after the establishment of the family court. to found their conclusion that there is no inherent want of jurisdiction for the civil court, the learned judges had adverted to various circumstances. the learned judges took note of the circumstance that even under the family courts act, the family court can forward the decree to a civil court. their lordships took note of the circumstance that an independent suit by a stranger before a civil court would have been perfectly maintainable as the same would not fall within the sweep of section 7. it is only in that context that the observations in paragraph 6 were made by the division bench while considering point no. 1 in joseph. the observations of the division bench in joseph cannot by any stretch of imagination be extended or understood to mean that the family court has no jurisdiction to execute its own orders or that in the course of execution, a claim under order 21, rule 58 cannot be raised before or adjudicated by the family court. of course an independent suit by such a stranger cannot be adjudicated by the family court as that would be totally outside the purview of the explanation to section 7. the relevant observations in paragraph 6 of joseph indicate only that.9. the learned counsel for respondents 1 and 2 submits that it is a collusive' transfer by the 3rd respondent in favour of the appellant and respondents 1 and 2 shall be able to establish that fact before the family court. the alleged transfer is hit by the doctrine of lis pendens under section 52 of the transfer of property act, it is further urged. of course respondents 1 and 2 shall be at liberty to advance all those contentions before the family court to resist the claim made by the appellant under order 21, rule 58. in any view of the matter, we are unable to accept the conclusion of the family court in the impugned order that the family court lacks jurisdiction to consider the claim under order 21, rule 58 when the family court is proceeding to execute its own decree.10. the fact that the nature of the claim raised under order 21, rule 58 by a stranger will not fall within the sweep of the explanation in section 7 cannot be held to be a sufficient or justifiable ground to hold that the claim by such a stranger under order 21, rule 58 is not maintainable. section 7 and its explanation cannot apply when the claim is raised under order 21, rule 58 in the course of the attempt by the family court to execute its own order. the claim of a stranger need not necessarily fall within the sweep of section 7 of the family courts act, when such claim is raised in the course of execution under order 21, rule 58, c.p.c. to clothe the family court with jurisdiction to consider the same.11. we are satisfied that the impugned order calls for interference for the above reasons.12. in the result:(a) this appeal is allowed.(b) the impugned order is set aside.(c) the family court is directed to consider e. a. no. 113/2001 afresh and pass appropriate orders.(d) parties are directed to appear before the family court on 16-11-2009. the family court shall proceed to dispose of e. a. no. 113/2001 as expeditiously thereafter as possible - at any rate on or before 16-1-2010. compliance shall be reported to this court.
Judgment:

R. Basant, J.

1. Respondents 1 and 2 had initiated proceedings for maintenance before the Family Court against the 3rd respondent herein, their husband/father. It is unnecessary to advert to the details and sequence of events in that litigation. Suffice it to say that the Family Court ultimately allowed the said claim in O. P. No. 761/99 directing payment of maintenance at the rate of Rs. 1,000/- and 750/- per mensem respectively to respondents 1 and 2 creating a charge on the property. Respondents 1 and 2 sought to put that order into execution and filed E. P. No. 42/2000. In E. P. No. 42/2000, the appellant herein filed E. A. No. 113/2001 under Order 21, Rule 58 contending that the property is not liable to be proceeded with in execution, as he has right, title and interest over the property to the exclusion of the 3rd respondent.

2. When that E. A. came up for consideration before the Family Court, the Family Court by the impugned order held that the claim petition is not maintainable. We extract the order of the Family Court below.

Claim petition filed by the stranger is not entertainable, according to the decree holder. Counsel placed reliance on Joseph v. Marium Thomas : 2006 (1) KLT 894 : AIR 2006 Ker 212. As per the cited decision, 'a stranger who is a purchaser of the property from the husband cannot maintain an application before the Family Court for the property'. Claim is to be adjudicated by the Civil Court. Relied on case is squarely applicable, hence claim petition dismissed.

3. The learned Counsel for the appellant submits that the Court below had grossly erred in appreciating the dictum in Joseph v. Marium Thomas : 2006 (1) KLT 894 : AIR 2006 Ker 212. According to the learned Counsel for the appellant, the dictum in that case is not that the order/decree of a Family Court cannot be executed by the Family Court. The dictum is not that a claim by a third party raised in the course of execution of the decree cannot be considered and decided by the Family Court. The Family Court grossly erred in construing the dictum in : 2006 (1) KLT 894 : AIR 2006 Ker 212 and in concluding that a claim petition by a stranger/non party under Order 21 Rule 58, is not maintainable before the Family Court, contends counsel.

4. We have heard both counsel. The learned Counsel for the appellant first of all relies on Section 18 of the Family Courts Act. We extract the same below:

18. Execution of decrees and orders.- (1) A decree or an order (other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), passed by a Family Court shall have the same force and effect as a decree or order of a Civil Court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the execution of decrees and orders.

(2) An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code.

(3) A decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary Civil Court to which it is sent for execution.

5. The learned Counsel contends that there can be no semblance of doubt on the question that an order/decree passed by the Family Court can be executed by the family Court. We agree with the learned Counsel. Powers under Order 21, C.P.C. are available to a Family Court for execution of its orders passed except the one passed under Chapter IX of the Cr. P. C.

6. The learned Counsel contends that if the Family Court has jurisdiction to execute its orders, the provisions of Order 21, Rule 58, C.P.C. must automatically apply and a claimant who sets up right, title and interest over the property to the exclusion of the judgment debtor has the right and the obligation to raise his claim before the execution Court, i.e., the Family Court. The learned, counsel further points out that in the light of Order 21, Rule 58(2) which we extract below such a claimant does not have the option to go to any other Court to establish the claim by filing a separate suit.

58(2). All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.

(Emphasis supplied)

7. We agree with the learned Counsel. The conclusion appears to be inevitable in these circumstances that under Section 18 of the Family Courts Act, the Family Court is the Court which can execute an order/decree passed by it. When the Family Court has power and jurisdiction to execute its order, obviously the provisions of Order 21 would apply and under Order 21, Rule 58, C. P. C. claims made by strangers will also have to be adjudicated by the Family Court (execution Court) and not in any other Court by any separate suit. In this view of the matter, certainly, the Family Court 'has jurisdiction to consider a claim petition by a stranger like the appellant herein under Order 21, Rule 58, C.P.C. there can be absolutely no doubt on that proposition of law.

8. The learned Judge of the Family Court appears to have felt that the decision in Joseph v. Marium AIR 2006 Ker 212 (supra) lays down that such a claim by a stranger is not maintainable at all. The learned Counsel for the appellant contends and we accept that the Division Bench in Joseph v. Marium was not considering an identical question at all. The question that arose before the Division Bench in that case was whether the earlier proceedings before an execution Court (Civil Court) and the orders passed therein would bind the parties, notwithstanding the fact that the Family Court had jurisdiction to consider the same. The question that arose for consideration in that case was whether the earlier orders passed by the Civil Court in execution of its own decree which orders had become final after challenge before this High Court can be ignored on the ground that the civil Court lacked jurisdiction inherently to execute its own decree after the establishment of the Family Court. To found their conclusion that there is no inherent want of jurisdiction for the civil Court, the learned Judges had adverted to various circumstances. The learned Judges took note of the circumstance that even under the Family Courts Act, the Family Court can forward the decree to a civil Court. Their Lordships took note of the circumstance that an independent suit by a stranger before a civil Court would have been perfectly maintainable as the same would not fall within the sweep of Section 7. It is only in that context that the observations in paragraph 6 were made by the Division Bench while considering point No. 1 in Joseph. The observations of the Division Bench in Joseph cannot by any stretch of imagination be extended or understood to mean that the Family Court has no jurisdiction to execute its own orders or that in the course of execution, a claim under Order 21, Rule 58 cannot be raised before or adjudicated by the Family Court. Of course an independent suit by such a stranger cannot be adjudicated by the Family Court as that would be totally outside the purview of the explanation to Section 7. The relevant observations in paragraph 6 of Joseph indicate only that.

9. The learned Counsel for respondents 1 and 2 submits that it is a collusive' transfer by the 3rd respondent in favour of the appellant and respondents 1 and 2 shall be able to establish that fact before the Family Court. The alleged transfer is hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act, it is further urged. Of course respondents 1 and 2 shall be at liberty to advance all those contentions before the Family Court to resist the claim made by the appellant under Order 21, Rule 58. In any view of the matter, we are unable to accept the conclusion of the Family Court in the impugned order that the Family Court lacks jurisdiction to consider the claim under Order 21, Rule 58 when the Family Court is proceeding to execute its own decree.

10. The fact that the nature of the claim raised under Order 21, Rule 58 by a stranger will not fall within the sweep of the explanation in Section 7 cannot be held to be a sufficient or justifiable ground to hold that the claim by such a stranger under Order 21, Rule 58 is not maintainable. Section 7 and its explanation cannot apply when the claim is raised under Order 21, Rule 58 in the course of the attempt by the Family Court to execute its own order. The claim of a stranger need not necessarily fall within the sweep of Section 7 of the Family Courts Act, when such claim is raised in the course of execution under Order 21, Rule 58, C.P.C. to clothe the Family Court with jurisdiction to consider the same.

11. We are satisfied that the impugned order calls for interference for the above reasons.

12. In the result:

(a) this appeal is allowed.

(b) the impugned order is set aside.

(c) The Family Court is directed to consider E. A. No. 113/2001 afresh and pass appropriate orders.

(d) Parties are directed to appear before the Family Court on 16-11-2009. The Family Court shall proceed to dispose of E. A. No. 113/2001 as expeditiously thereafter as possible - at any rate on or before 16-1-2010. Compliance shall be reported to this Court.