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HIGH COURT OF KERALA
A.M.SHAFFIQUE, K.RAMAKRISHNAN, JJ
THANKAMMA CHERIAN – Appellant
Versus
GEORGE P CHERIAN BINTU – Respondent
OP (FAMILY COURT) 55/2017
Execution - Family Court Proceedings - [Family Court Act],[Civil Procedure Code] - The court ruled on the interim stay of execution petition proceedings pending the resolution of applications to set aside an ex parte order, emphasizing the need for balance between rights and obligations.
Fact of the Case:
The petitioner sought to stay execution proceedings related to a 2012 family court decree while challenging an ex parte order. The petitioner argued that the execution could cause serious hardship as property was being sold without consideration of her pending applications.
Finding of the Court:
The court refused to stay execution proceedings, emphasizing the need for the petitioner to comply with financial obligations by paying a portion of the decree amount, while allowing the family court to resolve the challenge to the ex parte order within three months.
Issues: Whether the execution of the decree should be stayed pending the consideration of the petitioner's applications to set aside an ex parte order.
Ratio Decidendi: The court found that the potential hardship resulting from the sale of property must be balanced against the necessity of enforcing the decree, leading to a conditional stay on the property sale.
Final Decision: The original petition is disposed of with conditions for partial payment and prompt adjudication of pending applications.
JUDGMENT
A.M. Shaffique, J:
The petitioner had approached this Court interalia seeking for a direction to keep in abeyance further proceedings in EP.No.38/2015 in OP.No.1605/2016 of the Family Court, Thiruvalla pending final adjudication of Exts.P3 and P4 applications pending before the Family Court, Ernakulam. Exts.P3 and P4 applications have been filed by the petitioner to set aside the ex parte order after condoning a delay of 1713 days. The contention urged by the petitioner is that the said applications have been filed only on 16.1.2017 and in the meantime Execution Court is proceeding with the sale of the property and if the property is sold, the petitioner will be put to serious hardship.
2. The Execution Court is proceeding with the decree which has been passed as early as on 7.4.2012. Since the applications Exts.P3 and P4 are to be considered by the Family Court, we do not think it necessary for us to go into the merits of the contentions urged.
3. The decree amount will come to Rs.9,30,000/-. Until now no amount had been paid to the decree holder. Under such circumstances, we are not inclined to stay the further proceedings in the execution petition.
4. The learned counsel appearing for the petitioner submits that the property which is put up for sale is jointly owned by the petitioner and her son who is also one of the judgment debtors.
5. Having regard to the aforesaid factual situation, we are of the view that the original petition can be disposed of without notice to the respondents. The Execution Court shall keep in abeyance the proceedings for sale of the share of the petitioner on condition that the petitioner remits 50% of the decree amount within a period of three weeks from today. The Family Court, Ernakulam shall consider Exts.P3 and P4 applications and try to dispose of the same within a period of three months from the date of receipt of a copy of this judgment. The petitioner shall also take appropriate steps to complete service on the second respondent, her son. This order shall not preclude the Execution Court in proceeding with the sale of the property belonging to the second respondent herein.
With the above observations, this original petition is disposed of.
Sd/
A.M. SHAFFIQUE, JUDGE.
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