Firoz Khan and Raziya Beegum v. Shahana Zakeer

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941** **OP (FC).No.600 OF 2019** **AGAINST THE ORDER/JUDGMENT IN I.A.NO.2219/2019 IN OP 125/2016 DATED 16-08-2019 OF FAMILY COURT,KOLLAM** ## **PETITIONERS/RESPONDENTS 1 & 2:** **1 FIROZKHAN AGED 30 YEARS S/O.ABDUL SALAM, FIROZ COTTAGE, PANTHRANTU MURI NAGAR, PINAKKAL CHERRY, THATTAMALA.P.O., KOLLAM DISTRICT-691020. 2 RAZIYA BEEGUM AGED 54 YEARS W/O.ABDUL SALAM, FIROZ COTTAGE, PANTHRANTU MURI NAGAR, PINAKKAL CHERRY, THATTAMALA.P.O., KOLLAM DISTRICT-691020.** **BY ADVS. SRI.M.KIRANLAL SRI.MANU RAMACHANDRAN SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH AJAY JAYACHANDRAN NEBIL NIZAR** ## **RESPONDENT/PETITIONER:** ## **SHAHANA ZAKEER,** **AGED 24 YEARS, D/O.ZAKEER, SHAHANA MANZIL, IQBAL NAGAR 94, VADAKKEVILA.P.O., KOLLAM DISTRICT-691010.** **R1 BY ADV. SRI.T.R.RAJAN** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 05.12.2019, ALONG WITH OP (FC).601/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (FC).Nos.600 & 601 OF 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 05TH DAY OF DECEMBER 2019 / 14TH AGRAHAYANA, 1941** **OP (FC).No.601 OF 2019** **AGAINST THE ORDER/JUDGMENT IN I.A.NO.2489/2019 IN OP 125/2016 DATED 16-08-2019 OF FAMILY COURT,KOLLAM** ## **PETITIONERS/RESPONDENTS 1 & 2:** **1 FIROZKHAN AGED 30 YEARS S/O.ABDUL SALAM, FIROZ COTTAGE, PANTHRANTU MURI NAGAR, PINAKKAL CHERRY, THATTAMALA.P.O., KOLLAM DISTRICT-691020.** **2 RAZIYA BEEGUM AGED 54 YEARS W/O.ABDUL SALAM, FIROZ COTTAGE, PANTHRANTU MURI NAGAR, PINAKKAL CHERRY, THATTAMALA.P.O., KOLLAM DISTRICT-691020.** **BY ADVS. SRI.M.KIRANLAL SRI.MANU RAMACHANDRAN SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH SHRI.AJAY JAYACHANDRAN SRI.NEBIL NIZAR** ## **RESPONDENT/PETITIONER:** **SHAHANA ZAKEER, AGED 24 YEARS, D/O.ZAKEER, SHAHANA MANZIL, IQBAL NAGAR 94, VADAKKEVILA.P.O., KOLLAM DISTRICT-691010.** **R1 BY ADV. SRI.T.R.RAJAN** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 05.12.2019, ALONG WITH OP (FC).600/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (FC).Nos.600 & 601 OF 2019 3 ## **“CR”** ## **JUDGMENT** **[ OP (FC).600/2019, OP (FC).601/2019 ] Dated this the 5th day of December 2019** ## **C.S.Dias, J.** The petitioners are the respondents 1 & 2 in O.P. No. 125/2016 on the file of the Family Court, Kollam. The respondent herein is the petitioner in the original petition. 2. The original petition was filed by the respondent against the petitioners, the husband and mother-in-law of the respondent, seeking a decree for recovery of money and gold ornaments. 3. The respondent had filed I.A.No.194/2016 in O.P.No.125/2016 (Ext.P2), seeking an order of attachment before judgment, to attach the property of the second petitioner, under Order XXXVIII, Rule 5 of the Code of Civil Procedure (for brevity, referred to as “Code”). 4. The respondent had specifically pleaded in the original petition that the second petitioner had sold her gold ornaments and the sale proceeds of Rs.4,41,875/- was deposited in the second petitioner's bank account. The Family Court, by Ext.P3 OP (FC).Nos.600 & 601 OF 2019 **==> picture [7 x 8] intentionally omitted <==** order dated 04.06.2018, passed a conditional order of attachment directing the second petitioner to furnish security for an amount of Rs.4,41,875/-, failing which the conditional attachment would be made absolute, and her property would be attached. 5. The second petitioner filed I.A.No. 2219/2019 under Order XXXVIII Rule 6 (2) of Code, seeking to withdraw the attachment, and provided Ext.P4 fixed deposit receipt, for the amount covered by Ext.P3 order. 6. On the filing of the above application and production of the fixed deposit receipt, the respondent immediately filed I.A.No.2489/2019 (Ext.P5) under Order XXXIX Rule 1 of the Code, seeking an order of temporary injunction to restrain the second petitioner from alienating the attachment schedule property. 7. The Family Court, by Ext.P6 common order dated 16.08.2019, dismissed I.A.No.2219/2019 and allowed I.A.No.2489/2019 restraining the second petitioner from transferring the attachment schedule property till the disposal of the original petition. 8. It is assailing the impugned common order that the OP (FC).Nos.600 & 601 OF 2019 5 present original petitions are filed under Article 227 of the Constitution of India. O.P.(F.C.)No.600/2019 is filed to set aside the order and allow I.A.No.2219/2019 and O.P.(F.C.)No.601/2019 is to set aside the order in I.A.No.2489/2019 and dismiss the application. 9. Heard Sri.M. Kiranlal, counsel for the petitioners and Sri. T.R. Rajan, counsel for the respondent. 10. The question that emerges for consideration in these original petitions is whether the Family Court was justified in passing two sets of orders, simultaneously, ordering attachment before judgment and an order of temporary injunction? 11. Order XXXIX, Rule 1 of the Code reads as follows:- **“Cases in which temporary injunction may be granted** .-Wherein any suit it is proved by affidavit or otherwise- - (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or - (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors. - (c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to OP (FC).Nos.600 & 601 OF 2019 6 any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.” 12. Order XXXVIII, Rule 5 reads as follows:- “Where defendant may be called upon to furnish security for production of property.-(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,- - (a) is about to dispose of the whole or any part of his property, or - (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.” 13. Order XXXIX, Rule 1 and Order XXXVIII, Rule 5 provide under what circumstances an order of temporary injunction and an order of attachment before judgment can be passed. 14. The respondent had only sought for a relief for recovery of money to the tune of Rs.4,41,875/- from the second petitioner, alleging that she had misappropriated the respondent's gold ornaments for the above value. No relief is sought against any property. There is also no allegation that any property is in danger of being wasted, damaged or alienated. It was knowing the distinction between Order XXXIX, Rule 1 and OP (FC).Nos.600 & 601 OF 2019 7 XXXVIII, Rule 5 of the Code, that the respondent filed Ext.P2 application, at the first instance, seeking an order of attachment before judgment. 15. The Family Court considered Ext.P2 application, as it fulfilled the ingredients of Order XXXVIII, Rule 5 of Code, and passed Ext.P3 conditional order. 16. On the second petitioner furnishing security and seeking withdrawal of the attachment, the respondent filed the subsequent application to pass an order of temporary injunction. 17. The Family Court, instead of withdrawing the conditional attachment, passed the impugned order restraining the petitioners from alienating the attachment schedule property. 18. An issue of similar nature was considered by the Hon'ble Supreme Court in **V.G. Quenim and Anr. v. Bandekar Brothers (P) Ltd [(2002) 10 SCC 513]** . The Supreme Court held that two sets of orders shall not be passed simultaneously under Order XXXVIII, Rule 5 and XXXIX, Rule 1 of the Code. 19. Relying on the above ratio decidendi and considering the fact that the relief claimed by the respondent is for a decree for recovery of money, we hold that the two sets of restraint OP (FC).Nos.600 & 601 OF 2019 8 orders simultaneously passed by the Family Court are erroneous and irregular, particularly when the respondent had elected, at the first instance, only to move for an application for attachment before judgment. 20. In the light of the above facts that the second petitioner has already furnished security in compliance to Ext.P3 order, we allow these original petitions and set aside Ext.P6 common order. The order in I.A.No.2489/2019 is vacated and I.A.No.2219 of 2019 is allowed. The Family Court shall accept the security offered by the petitioners and withdraw Ext.P3 order of attachment. 21. Taking into consideration the fact the original petition is pending from 2016 onwards, we direct the Family Court to expeditiously dispose of O.P.No.125/2016, within a period of five months from the date of production of a copy of this judgment. The parties shall bear their respective costs. ## **Sd/-** **K.HARILAL** **JUDGE** **Sd/-** **C.S.DIAS** shg **JUDGE** OP (FC).Nos.600 & 601 OF 2019 9 ## **APPENDIX OF OP (FC) 600/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PETITION IN OP.125/2016. EXHIBIT P2 TRUE COPY OF THE APPLICATION IN IA.194/2016.** **EXHIBIT P3 A TRUE COPY OF THE WARRANT DATED 27.2.2018. EXHIBIT P4 A TRUE COPY OF THE FD RECEIPT. EXHIBIT P5 A TRUE COPY OF THE APPLICATION IN IA.2489/2019 IN OP.125/2016. EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 16.8.2019 IN IA.2219/2019.** OP (FC).Nos.600 & 601 OF 2019 10 ## **APPENDIX OF OP (FC) 601/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORIGINAL PETITION IN OP.125/2016. EXHIBIT P2 TRUE COPY OF THE APPLICATION IN IA.194/2016. EXHIBIT P3 A TRUE COPY OF THE WARRANT DATED 27.2.2018. EXHIBIT P4 A TRUE COPY OF THE FD RECEIPT. EXHIBIT P5 A TRUE COPY OF THE APPLICATION IN IA.2489/2019 IN OP.125/2016. EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 16.8.2019 IN IA.2489/2019.**