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

THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA FRIDAY, THE 14^TH DAY OF MARCH 2025 / 23RD PHALGUNA, 1946 MA (EXE.) NO. 5 OF 2024 AGAINST THE ORDER/JUDGMENT DATED 06.01.2024 IN OP NO.896 OF 2018 OF FAMILY COURT, THALASSERY APPELLANTS/PETITIONERS:

1 HADIYA (MINOR)

AGED 12 YEARS D/O AZEEZ, RESIDING AT KUMULLY PARAMBATH, P.O CHOROD, VADAKARA, KOZHIKODE DISTRICT MINORS REPRESENTED BY THEIR MOTHER AND GUARDIAN NADEERA.K.P, W/O AZEEZ, AGED 44 YEARS, RESIDING AT KUMULLY PARAMBATH, P.O CHOROD, VADAKARA, KOZHIKODE, PIN - 673106

2 AMINA.K.P ( MINOR )

AGED 9 YEARS D/O AZEEZ, MINOR, RESIDING AT KUMULLY PARAMBATH, P.O CHOROD, VADAKARA, KOZHIKODE- MINORS REPRESENTED BY THEIR MOTHER AND GUARDIAN NADEERA.K.P, W/O AZEEZ, AGED 44 YEARS, RESIDING AT KUMULLY PARAMBATH, P.O CHOROD, VADAKARA, KOZHIKODE DISTRICT, PIN - 673106 BY ADVS.

PRAJIT RATNAKARAN ABDUL RAOOF PALLIPATH RESPONDENTS/RESPONDENTS:

1 SHAMEERA.M.M AGED 46 YEARS D/O YOUSUF, AL-THAVAKKAL, MENAPRAM, P.O CHOKLI, THALASSERY, KANNUR- DISTRICT, PIN - 670672

2 AZEEZ AGED 48 YEARS S/O KUNHAMMAD.P, PULIATHINKAL HOUSE, PADANNAKARA, P.O KARIYAD, THALASSERY, KANNUR DISTRICT, PIN -

673316 BY ADVS.

Millu Dandapani V.V.SURENDRAN S.VISHNU(K/000557/2017)

THOMAS C.ABRAHAM(K/517/2022)

ARAVIND P.V.(K/1786/2020) P.A.HARISH(K/000392/1991)

THIS MAT APPEAL (EXECUTION) HAVING COME UP FOR HEARING ON

11.3.2025M THE COURT ON 14.03.2025 DELIVERED THE FOLLOWING:

DEVAN RAMACHANDRAN & M.B.SNEHALATHA, JJ.

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MA (EXE.) No.5 of 2024 -------------------------------------------

Dated, this the 14^th March, 2025

JUDGMENT

M.B.Snehalatha.J The challenge in this appeal is to the order of dismissal of E.A.No.52/2023 in E.P.No.18/2020 in O.P. No.896/2018 of Family Court, Thalassery. E.A.No.52/2023 was a petition filed by the appellants under Order XXI Rule 58 r/w Section 151 of the Code of Civil Procedure to release the petition schedule property from attachment and sale.

2. Appellants' case is that the property put in auction for the realisation of decree debt belongs to them; that they obtained the same by virtue of Ext.A1 sale deed bearing No.2035/2021 of SRO, Chokli and after the execution of Ext.A1, they are paying tax in respect of the said property. According to them, their father/ judgment debtor who is the 2^nd respondent herein, has no right over the said property and therefore, the petition schedule property is to be excluded from the attachment and sale in the execution proceedings.

3. 2^nd respondent/judgment debtor did not file any counter to the claim petition.

4. 1^st respondent/decree holder filed counter denying the title, interest and ownership of the appellants and also stating that she obtained a decree against the 2^nd respondent/judgment debtor who is her former husband for realization of ₹10,38,687/- towards the marriage expenses of her daughter born to her in the wedlock with the judgment debtor/2nd respondent and since the judgment debtor failed to pay the decree debt, petition schedule property belonging to the judgment debtor/2nd respondent was put to sale. Her contention is that in order to evade the liability, 2^nd respondent/judgment debtor executed a gift deed in respect of the petition schedule property in favour of his sister Fauziya. Subsequently, on 19.11.2021, said Fauziya had filed a claim petition as E.A. No.69/2021, which was dismissed by the Family Court on 2.9.2022. Meanwhile, Fauziya created a sham document in favour of the appellants, who are the children of judgment debtor born to him in his second marriage. Evenafter, creating Ext.A1 document, Fauziya filed Mat.A.No.10/2022, claiming ownership over the property. Appellants who are the children of the judgment debtor/2nd respondent in his second marriage have filed the claim petition with a view to delay and defeat the execution proceedings and to harass the decree holder. Ext.A1 document bearing No.2035/2021 is a sham document