The execution of a property sale must align with the liability outlined in a decree, necessitating reevaluation of claims before proceeding.

JUDGMENT Devan Ramachandran, J.

The petitioner challenges Ext.P10 order of the learned Family Court, Thrissur, whereby, her property had been ordered to be put to sale, with an upset price of Rs.5 lakhs, in execution of a decree obtained by the respondent earlier, in EP No.58/2023 in OP No.1935/2017.

2. The respondent herein obtained decree against the petitioner and her deceased son (husband of the respondent) for an amount of Rs.2,42,000/-, being the value of gold ornaments, which she claimed from them, chargeable to their assets. The decree also allowed the respondent to recover past maintenance, of an amount of Rs.1,80,000/-, from her deceased husband.

3. Since the petitioner or her son - while he was alive, did not honour the decree, the respondent levied execution, by filing EP No.58/2023, in which, the impugned order has now been issued.

4. As indicated, the son of the petitioner (husband of the respondent) died pending the litigation, and his property came to be devolved on the parties, as also the children of the respondent, equally. The learned Family Court, proceeding with the execution, ordered the sale of the property. On the assertion that the sale proclamation was not aligning with the statutory requirements, the petitioner approached this Court and obtained Ext.P6 judgment, whereby, the learned Family Court was directed to settle a fresh proclamation, after affording necessary opportunities to both sides.

5. It appears - as is admitted - that the learned Family Court deputed an Advocate Commissioner, who valued the entire property to a sum of Rs.17 lakhs and or so; and on the basis of the same, the learned Court issued Ext.P10 order, finding that the value of the one fourth share of the petitioner herein is Rs.4,80,800/-; thus fixing the upset price for such share to be Rs.5 lakhs.

6. Smt.E.U.Dhanya – learned counsel for the petitioner, submitted that the impugned order is vitiated on various counts, particularly because it appears to have misjudged that her client is responsible for the entire decree. She pointed out that the decree has two limbs, as noticed earlier; and that it is only the first limb, namely to the sum of Rs.2,42,000/- being the value of the gold ornaments – that too jointly and severally with the deceased husband of the respondent (her son) - that her client is liable to honour. She argued that the burden of payment of the past maintenance is solely against the now deceased husband of the respondent; and hence that the same cannot be imposed upon her client.

7. Smt.E.U.Dhanya then added that, as regards the first limb of the decree, namely to pay Rs.2,42,000/- towards the value of gold ornaments, her client would be liable to pay only one half of the same because, it has been ordered to be paid by her and her deceased son jointly. She prayed that, therefore, the learned Family Court ought not to have put the entire one fourth share of her client to sale, nor fixed the upset price to be Rs.5 lakhs, since the amount recoverable from her would be, at the best, Rs.1,23,000/- or so.

8. In response, Sri.Mahesh V.Menon –

learned counsel for the respondent, submitted that the above arguments are hypertechnical in nature and are intended only to delay the execution proceedings. He, however, conceded that, as per the decree, the liability of the petitioner would only be Rs.2,42,000/-; and contended that she cannot apportion this between her and her deceased son because, it is the right of his client, as the decree holder, to recover it in the manner she desires si