Back
Judges : R.BHASKARAN,M.SASIDHARAN NAMBIAR
Joseph - Appellant
Versus
Marium Thomas - Respondent
Case No : Ex.FA.No.46 of 2005
Decided On : 02/08/2006
Advocates Appeared :
For the Appellant: K.V. Sohan, K. Sreeja Sohan, Advocates. For the Respondents: R1, K. Gopalakrishna Kurup, Advocate.
Family Courts Act, 1984 - Section 7, 18 - Transfer of Property Act, 1882 - Section 52 - Jurisdiction - Appellant contended that the court below was not correct in following the decisions in the earlier CRPs as the proceedings which were the subject matter of the two revisions were proceedings without jurisdiction and therefore orders in the CRPs were also not binding on the appellant - It is also argued that the very decree obtained by first respondent against the second respondent is a collusive decree and the appellant was cheated by both the husband and wife - Thirdly it is contended that the suit itself is for past maintenance and the decree for future maintenance was not claimed for and the decree was inexecutable with respect to the claim for future maintenance - It is also argued that the interlocutory application in the earlier E.Ps have no legs to stand after the disposal of the E.P - Held, S.18 of the Family Courts Act that the decree or order passed by a Family Court can be executed by the Family Court or ordinary Civil Court to which it is sent for execution. Sub S. 3 of S.18 gives a clear indication to the fact that the jurisdiction of the Civil Court to execute a decree of a Family Court is not ousted. Here the decree was passed by the Civil Court itself and there is no necessity to send it for execution to another court. Even in cases where a decree is passed by the Family Court if the Civil Court has got jurisdiction to execute the decree we find no reason to doubt the jurisdiction of the civil court to execute the decree passed by the Civil Court itself.Explanation to S.7 excludes the jurisdiction of the Civil Court only in certain matters which are relating to proceedings between the parties to a marriage. Of course it includes a suit or proceeding for maintenance but in this case the appellant is not a party to the marriage or is not claiming any maintenance. He is a total stranger and his claim for the property purchased from the husband cannot be brought in clause 'f' to explanation to S.7 of the Family Courts Act. It is only in such cases that the jurisdiction of the Civil Court is ousted and in all other cases the Civil Courts continue to have jurisdiction. For attracting S.52 of the Transfer of Property Act it need not necessarily be a suit relating to a property. It is sufficient if a charge is claimed in respect of the property. In that case also the prohibition contained in Section 52 is attracted and any transfer after the filing of the suit will be hit by S.52 of the Transfer of Property Act. In this case admittedly the purchase of the property by the appellant was after the suit for maintenance claiming charge over the plaint schedule property. Therefore even if the appellant is a bona fide purchaser he cannot claim any right in preference to the claim for charge as ordered by the Civil Court - Execution First Appeal is dismissed
Key Points: - The Civil Court has jurisdiction to execute a Family Court decree under Section 18(3) of the Family Courts Act, and there is no necessity to send the decree to another court for execution (!) (!) . - Section 7 and its Explanation exclude Civil Court jurisdiction only in certain marriage-related proceedings; here the appellant was not a party to the marriage or claiming maintenance, so Civil Court jurisdiction is not ousted (!) (!) . - Section 52 of the Transfer of Property Act can apply to charges over property even in non-suit contexts; a charge claimed on the plaint schedule property bars transfers after filing, and a bonafide purchaser cannot prevail against the decree for charge (!) (!) (!) . - The decree obtained against the second respondent was not shown to be collusive; the suit was filed earlier (1993) and the appellant purchased in 1996; the record does not support a finding of collusion (!) (!) . - The decree provides a charge on the plaint schedule property for maintenance; the appellant is not entitled to challenge the correctness of the decree as he is not a party to the suit (!) (!) . - The appeal regarding execution is dismissed; the reasoning relies on lis pendens principles and Section 52 applicability to charges (!) . - The property purchase after filing of the maintenance suit is subject to the charge created by the decree; thus the appellant cannot claim priority over the charge (!) .
Bhaskaran, J.
This appeal is filed by a third party claimant in E.P.2/2003 in O.S.226/1993 on the file of the Family Court, Kottayam at Ettumanoor. The first respondent in the appeal obtained a decree for maintenance against the second respondent and the decree made it clear that the claim for maintenance will be a charge on the plaint schedule property. The suit was filed as early as on 8-12-1993 before the Munsiff Court, Ettumanoor claiming maintenance at the rate of Rs.750/- per month. The suit was decreed on 20-12-1992 at the rate of Rs.500/- per month from 1-1-1994 charging the plaint schedule property for the claim for maintenance. On the date of filing of the suit itself there was a petition for attachment before judgment and a conditional attachment was ordered. In the decree passed on 20-12-1995 the Munsiff Court granted a charge for the plaint claim over the plaint schedule property. On 29-2-1996 the second respondent sold the property in favour of the appellant showing a consideration of Rs.1 lakh. Subsequently E.P.49/1997 was filed for realization of the decree debt by the first respondent against the second respondent. On 26-11-1998 the petitioner filed E.A.85/98 claiming that the property is not liable to be sold as he is a bonafide purchaser for consideration and he was not bound by the decree. That application was dismissed on 9-4-1999 holding that the transfer in favour of the petitioner was subject to the decree against the second respondent. Challenging that order the petitioner filed CRP.1379/99 before this Court and that was dismissed by order dated 27-7-1999. It was held by this Court that the transfer in favour of the appellant was hit by principle of lis pendens. Subsequently the appellant filed E.P.39/99 offering to deposit Rs.25,000/- and get the property released from the liability under the decree. That petition was also dismissed by the Munsiff Court, Ettumanoor. Against that order petition filed CRP.2583/1999 which was also dismissed following the order in CRP.1379/99.
2. While the earlier E.P. was pending before the Munsiff Court a contention was raised that Family Court is established and only the Family Court has jurisdiction to execute the decree. Thereafter fresh E.P. was filed before the Family Court and the earlier E.P. was dismissed. Before the Family Court, the appellant filed E.A.42/03, which was also dismissed by the order under challenge.
3. In this appeal the learned counsel appearing for the appellant contended that the court below was not correct in following the decisions in the earlier CRPs as the proceedings which were the subject matter of the two revisions were proceedings without jurisdiction and therefore orders in the CRPs were also not binding on the appellant. It is also argued that the very decree obtained by the first respondent against the second respondent is a collusive decree and the appellant was cheated by both the husband and wife. Thirdly it is contended that the suit itself is for past maintenance and the decree for future maintenance was not claimed for and the decree was in executable with respect to the claim for future maintenance. It is also argued that the interlocutory application in the earlier E.Ps have no legs to stand after the disposal of the E.P.
4. The learned counsel for the respondent on the other hand argued that none of these contentions can be sustained since the transfer in favour of the appellant is hit by Sec.52 of the Transfer of Property Act and even if he is a bonafide purchaser his transfer has to be subject to the decision in the suit and he is not entitled to ignore the decree obtained by the first respondent against the second respondent. It is also argued that the contention that the earlier proceedings were without jurisdiction is having no substance as the court had full jurisdiction to consider the petition for execution.
5. In view of the above contention, the points for consideration in this appeal are:
1) Whether the ear
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
