1
```
INTHEHIGHCOURTOFKERALAATERNAKULAM
PRESENT
THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV
&
THEHONOURABLEMR.JUSTICEP.M.MANOJ
FRIDAY,THE24[TH]DAYOFMAY2024/3RDJYAISHTA,1946
OP(FC)NO.241OF2024
```
```
INEPNO.32OF2017OFFAMILYCOURT,MUVATTUPUZHA
```
## **`PETITIONER/PETITIONER:`**
```
ARUNIMAP.T.,AGED41YEARS
D/OTHANKAPPAN,PATHAPPILLILHOUSE,VENGOLAP.O,
PERUMBAVOOR,ERNAKULAMDISTRICT,PIN-683556
```
```
BYADVS.
SRUTHYN.BHAT
VIPINNARAYAN
```
## **`RESPONDENT/RESPONDENT:`**
```
ANOOP,AGED44YEARS
```
```
S/OVIJAYAKUMAR,PANACKAPATHALLILHOUSE,KADAYANICKADU
P.O,VELLAVOORVILLAGE,CHANGANASSERYTALUK,KOTTAYAM
DISTRICT,PIN-686550
```
```
THISOP(FAMILYCOURT)HAVINGCOMEUPFORADMISSIONON
24.05.2024,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING:
```
OP(FC) 241 of 2024
2
## **JUDGMENT**
## **Raja Vijayaraghavan, J.**
This petition is filed challenging the order dated 19.11.2022 in E.A. No.3/2021 in E.P. No.32/2017 in O.P. No.251/2014 on the files of the Family Court, Muvattupuzha.
2. Short facts which are required to be stated for disposal are as under:
The petitioner herein is the wife of the respondent. When differences of opinion arose between the husband and wife, it led to the institution of various petitions before the Family Court, Muvattupuzha. O.P. No.251/2014 was for the dissolution of marriage and O.P. No.345/2014 was for the return of money, gold ornaments etc. It appears that while the matter was pending consideration before the Family Court, the matter was referred to mediation and the parties arrived at a settlement. When the terms of the agreement were not complied with by the respondent, the petitioner proceeded to prefer an execution petition before the Family Court. The Family Court by order dated 27.12.2016 dismissed the execution petition on the ground that the
OP(FC) 241 of 2024
3
judgment debtor was residing outside the jurisdiction of the Family Court. Liberty was granted to the petitioner to approach either the jurisdictional Family Court or the Civil Court within whose jurisdiction the respondent was residing.
3. The petitioner, however, proceeded to file a fresh execution petition before the Family Court Muvattupuzha as E.P. No.32/2017. The respondent entered an appearance and filed an objection reiterating the very same contention raised earlier. The Family Court by order dated 1.06.2019 dismissed the petition yet again relying on Section 39 (4) of the CPC and directed the petitioner to file an application to transfer the decree to the court within whose jurisdiction the judgment debtor was residing.
4. The above order was challenged before this Court. By judgment dated 29.11.2019, in O.P.(F.C.) No. 681/201, this Court confirmed the order passed by the Family court holding that the decree was liable to be transferred to the Family court within whose jurisdiction the judgment debtor actually and voluntarily resides or carries on business or personally works for gain.
5. The petitioner in the said circumstances, approached the Family court and requested that the decree be transferred to the Family
OP(FC) 241 of 2024
4
court, Ettumanoor, under Section 39 (1) (a) of the CPC. The said application was allowed.
6. While the matter was pending as aforesaid, the respondent filed an application before the Family court, Muvattupuzha seeking permission to go abroad. Being aggrieved by the conditions imposed, the respondent approached this Court and filed O.P.(F.C.) No. 198/2020. A Division Bench of this Court, by judgment dated 13.1.2021, evaluated the entire facts and the law on the point and came to the conclusion that the Family court, Muvattupuzha had jurisdiction to entertain the Execution Petition. The Division Bench was of the view that the judgment rendered by the earlier Division Bench in O.P.(F.C.) No. 681/219 was rendered per incuriam as this Court had no occasion to consider the implications of Section 20 of the Family Court Act. The Division Bench proceeded to hold that if the objection of the nature raised by the respondents as to the maintainability of the Execution Petition by the Family court which passed the decree is accepted, it would make execution of a Family court decree a mirage in the hands of a judgment debtor, who, with fleeting quickness, may change his residence from one place to the other. It was also held that such an interpretation is ex facie contrary to the scheme, purpose and scope of the Family Court’s Act.
OP(FC) 241 of 2024
5
7. In the light of the observations and the law laid down by this Court, the petitioner approached the Family court, Muvattupuzha and filed E.A.No. 3/2021 seeking to recall the decree which was transferred to the Family court, Ettumanoor. The learned Family court by order dated 19.11.2022, dismissed the application. It was held that both the courts would have jurisdiction and in that view of the matter, there is no need to recall the decree. The above order is under challenge.
8. We have heard Sri. Vipin Narayan, the learned counsel appearing for the petitioner. Though notice was served on the respondent, he has not chosen to appear either in person or through counsel.
9. We have carefully considered the submissions advanced and have perused the entire records.
10. The reasons stated by the Family Court for rejecting the application are that the Family Court, Muvattupuzha, which passed the decree as well as the Family Court, Ettumanoor to which court the decree was sent for execution has jurisdiction to entertain the petition. The Family Court has not considered the principles of law laid down by the Division Bench in O.P.(F.C.) No. 198/2020. In this context, it would be
OP(FC) 241 of 2024
6
profitable to extract the observations made by this Court in the above petition.
“19. With the above principles in mind when we appreciate Section 18 of the Act, it can be understood that though the manner of executing the decree of a Family Court is as prescribed in the CPC, the court that has to execute the decree or order is primarily the Family Court which passed the decree or order. The "other Family Court or ordinary civil court to which it is sent for execution" is secondary in nature. It arises only after an application by the decree holder to send the decree for execution is made and the Family Court which passed the decree or order, directs sending of the decree for execution to the other Court. The words "by the other Family Court or ordinary civil court" in Section 18(3) of the Act is controlled and guided by the words "to which it is sent for execution". If it is not sent, undoubtedly the jurisdiction to execute the decree will continue to vest or remain with the Family Court that passed the decree or order. Such an interpretation arises on account of the overriding effect of the Family Courts Act in Section 20 and also due to the necessity of having certainty of laws. If the court of execution is a fluctuating one, depending on wherever the judgment debtor resides, an unscrupulous judgment debtor could easily circumvent or delay execution by repeatedly shifting his place of residence.
20. It is a hard truth that in spite of stipulation of time schedule for deciding the disputes brought before the Family Court, for explicable and inexplicable reasons, the command of the Family Courts Act for timely disposal, remains on the statute book as a letter without achieving the purpose. It is often remarked that the real
OP(FC) 241 of 2024
7
problem of a decree-holder in a suit starts with the obtaining of a decree. If the objection of the nature raised in this case to the execution petition is accepted, we are afraid, it would make execution of a Family Court decree a mirage in the hands of a judgment debtor who, with fleeting quickness, can change the residence from one place to another. Such an interpretation is exfacie contrary to the scheme, purpose and scope of the Family Courts Act.
21. Though the decision in **Arunima's case** (supra) is by a Bench of co-equal strength, since the provision in Section 20 of the Act was not brought to the notice of this Court or considered independently, the said judgment, in our considered view, is per incuriam.
22. The Latin expression per incuriam means through inadvertence. A decision can be said to be given per incuriam when the High Court or the Supreme Court, failed to refer to a relevant provision of a Statute which has a significant impact on the decision. In the decisions reported in **National Insurance Co.Ltd. v. Pranay Sethi and Others [2017 (16) SCC 680]** , and in **Animal Welfare Board of India v. Ombudsman [2006 (2) KLT 91]** , it has been held that a judgment is per incuriam if the judgment is rendered without noticing or in ignorance of a statute or statutory provision which would render the earlier reasoning and conclusion demonstrably wrong.
23. On the date when Ext.P8 order was passed, admittedly the Family Court, Muvattupuzha which had passed the original decree had not sent it to any other court for execution. When the execution petition filed as E.P.No.32/2017 was pending before the Family Court,
OP(FC) 241 of 2024
8
Muvattupuzha, it was certainly within its jurisdiction to pass Ext.P8 order.”
11. After considering the provisions of the Statute, this Court had held that the Family court, Muvattupuzha would have jurisdiction to entertain the execution petition. In that view of the matter, we do not approve of the view taken by the Family court that the wife has to be driven to the Family court where the husband resides to get the decree passed in her favour executed.
In view of the discussion above, Ext.P6 order cannot be sustained under the law. There will be a direction to the Family court, Muvattupuzha to reconsider the application filed by the petitioner to recall the decree passed by the court in O.P.No. 251/2014 and proceed with the execution in accordance with law.
Sd/-
## **RAJA VIJAYARAGHAVAN V JUDGE**
Sd/-
**P.M.MANOJ JUDGE**
```
ncd
```
OP(FC) 241 of 2024
9
## **`APPENDIX OF OP (FC) 241/2024`**
## **`PETITIONER EXHIBITS`**
```
ExhibitP1TRUECOPYOFTHEDECREEANDJUDGMENTI
O.P.NO.251/2014OFTHEFAMILYCOURT,DATE
18-01-2016MUVATTUPUZHA
ExhibitP2TRUECOPYOFTHEORDERINE.PNO.32/2017I
O.PNO.251/2014DATED01-06-2019OFTH
FAMILYCOURT,MUVATTAPUZHA
ExhibitP3TRUECOPYOFTHEJUDGMENTINOP(FC)NO
198/2020OFTHISHON'BLECOUR
DATED13-01-2021
ExhibitP4TRUECOPYOFTHEJUDGMENTOFTHISHON'BL
COURTINOP(FC)180/2021DATED16-03-2021
ExhibitP5TRUECOPYOFTHEAPPLICATIONPREFERREDBYTH
PETITIONERHEREININEA03/2021BEFORETH
FAMILYCOURT,ETTUMANOOR
ExhibitP6TRUECOPYOFTHEORDERINE.ANO.03/2021I
E.P.NO.32/2017INO.P.NO.251/2014OFTH
COURTOFTHEFAMILYCOURT,MUVATTUPUZHADATE
19-11-2022
```
