IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN &

THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON THURSDAY, THE 30^TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946 OP (FC) NO. 35 OF 2024 AGAINST THE ORDER DATED 11.12.2023 IN E.A.85/2023 IN EP NO.73 OF 2013 OF FAMILY COURT, TIRUR PETITIONERS/RESPONDENTS/RESPONDENTS:

1 SUBAIR, AGED 53 YEARS, S/O MOIDEEN, VETTIYATTIL HOUSE, MUTTICHIRA, KALIYATTAMUKK, P.O. MOONNIYOOR, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676311

2 MOIDEEN, AGED 75 YEARS, S/O BAVAJI, VETTIYATTIL HOUSE, MUTTICHIRA, KALIYATTAMUK, P.O. MOONNIYOOR, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676311 BY ADVS.

PRAVEEN K. JOY E.S.SANEEJ M.P.UNNIKRISHNAN N.ABHILASH DEEPU RAJAGOPAL ALBIN VARGHESE ABISHA.E.R ARDRA ANIL ANUPAMA NAIR ADITHYA LAL FATHIMA SHALU S.

RESPONDENT/PETITIONER/PETITIONERS:

HASEENA, AGED 43 YEARS, D/O AREEKKAL ALAVI, A.R. NAGAR AMSOM, KUTTOOR NORTH, P.O. KUTTOOR, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN - 676305 BY ADVS.

MOHAMED JAMEEL P.K K.P.BHAGYESH(K/480/2003)

THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON

30.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT Devan Ramachandran, J.

The petitioners assail Ext.P9 order of the learned Family Court, Tirur, through which, it has allowed E.A.No.85/2023 filed by the respondent in E.P.No.73/2013.

2. The uncontested facts are that the respondent filed O.P.No.1200/2010 against the petitioners seeking return of 44 sovereigns of gold, which was decreed through the judgment dated 30.11.2012, directing the petitioners to handover the said gold ornaments or their present market value, along with certain sums in money.

3. The respondent levied execution by filing E.P.No.73/2013; and during its pendency, she filed E.A.85/2023 to amend it, so as to show the value of 44 sovereigns at the present market rate. This application was vehemently opposed by the petitioners arguing that, going by the decree, they are only obligated to pay the value of the gold as on its purchase date, namely 30.11.2012. They thus contended that the application for amendment was untenable.

4. We have heard Sri.Praveen K. Joy – learned counsel for the petitioners; and Sri.P.K.Mohammed Jameel – learned counsel for the respondent.

5. Sri.Mohammed Jameel refuted the afore submissions of Sri.Praveen K. Joy, arguing that when the decree of the learned Family Court authorised his client to recover 44 sovereigns of gold ornaments from the petitioners, it was either that or its market value as on the date of realisation which ought to be honoured. He contended that there can be no two ways about this because, the judgment specifically directs ‘the respondents to pay 44 sovereigns of gold ornaments or their present market value’ (sic). He argued that, therefore, his client was without error in having approached the learned Execution Court for amendment of the Execution Petition, to bring the value mentioned therein at par with the market value of the gold as on the date of realisation.

6. We have examined the impugned order and notice that the learned Family Court has concluded that, as per the decree, the amount realisable by the respondent – if the gold is not handed over in specie – is its value at the time of realisation. 7. It is now too well settled, without requirement for restatement, that the Execution Court cannot travel behind the decree and that it will have to construe it exactly as it was intended by the trial court. It is without contest that the learned Family Court had allowed the original petition directing the respondents “to pay 44 sovereigns of gold ornaments or their present market value”(sic). In Syamini S Nair and Others v. Sreekanth R [2022 (2) KLT 896], this Court considered the various aspects involved in matters like this, to hold that the crucial date for determining price of gold, to be decreed as an alternative relief, is the date of payment; and further that, even if there is no specific prayer impelled in the origi