Justine @ Joseph and others v. Mareena George

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &`** ``` THEHONOURABLEMRS.JUSTICESOPHYTHOMAS TUESDAY,THE30[TH]DAYOFMAY2023/9THJYAISHTA,1945 OP(FC)NO.540OF2022 ``` ## **`AGAINST THE ORDER/JUDGMENT IN EA 8/2022 OF FAMILY COURT, PALA`** ``` PETITIONERS/JUDGMENTDEBTORSIN E.PANDE.A/RESPONDENTSINOP: ``` ``` 1JUSTINE@JOSEPH AGED39YEARS S/O.MATHEW,VALIYAPAIKATTUHOUSE, ULLANADP.O.,BHARANANGANAMVILLAGE, MEENACHILTALUK,KOTTAYAM., - PIN686651. ``` ``` 2MATHEW AGED69YEARS VALIYAPAIKATTUHOUSE,ULLANADP.O., BHARANANGANAMVILLAGE,MEENACHILTALUK, - KOTTAYAM.,PIN686651 ``` ``` 3GRACYMATHEW AGED64YEARS W/O.MATHEW,VALIYAPAIKATTUHOUSE, ULLANADP.O.,BHARANANGANAMVILLAGE, - MEENACHILTALUK,KOTTAYAM.,PIN 686651 BYADVS. SEBASTIANCHAMPAPPILLY ABRAHAMP.MEACHINKARA GEORGECLEETUS ANNIEGEORGE MARGARETMAUREENDROSE ``` ## **`RESPONDENT/DECREE HOLDER IN E.P AND E.A/PETITIONER IN OP:`** ``` MAREENAGEORGE AGED34YEARS ``` OP(FC) No.540 of 2022 2 ``` D/O.GEORGEKUTTY,PAIKADAHOUSE, KONIPPADUP.O.,MELUKAVUVILLAGE, - KOTTAYAMDISTRICT.,PIN686652 ``` ``` BYADVS. KSunithaVinod NARAYANS.VINOD(K/001076/2022) ``` ``` THISOP(FAMILYCOURT)HAVINGBEENFINALLYHEARDON 30.05.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` OP(FC) No.540 of 2022 3 ## **A.MUHAMED MUSTAQUE & SOPHY THOMAS, JJ.** ## **-------------------------------------------OP (FC) No.540 of 2022** **--------------------------------------------** Dated this the 30[th] day of May, 2023 ## **J U D G M E N T** ## Sophy Thomas, J. The judgment debtors in EP No.3 of 2016 in O.P No.1164 of 2010 on the file of Family Court, Pala, are challenging Ext.P5 order in EA No.8 of 2022, in this original petition. 2. The respondent/wife filed OP No.1164 of 2010 before Family Court, Pala, for recovery of patrimony from her husband and in-laws and obtained a decree as early as on 01.12.2012. The decree reads as follows: - “(a)The respondents are directed to return Rs.8,70,601/-to the petitioner, wife within one month from today and in default that amount will carry interest at the rate of 9% from the date of decree till realization. - (b) The respondents are directed to return 53 sovereigns of gold ornaments or its equivalent value Rs.12,72,000/-(@ of Rs.24,000/- per sovereign) to the petitioner/wife within one month from today and in default that amount will carry interest at the rate of 9% from the date of decree till realization. - (c) The respondents are directed to return the almirah and dress or its equivalent value of Rs.70,000/- to the petitioner/wife within one month from today and in default that amount will carry interest at the rate of 9% from the date of decree till realization”. OP(FC) No.540 of 2022 4 3. Mat.Appeal No.173 of 2013 was filed by the husband and in-laws against that decree and that appeal was dismissed on 26.07.2019, upholding the judgment and decree of the Family Court. Thereafter, the husband and in-laws filed R.P No.175 of 2021 for reviewing the judgment in Mat.Appeal No.173 of 2013. That review petition was allowed in part on 17.05.2022, to the extent that the rate of interest awarded by the Family Court @ 9% per annum from the date of decree till realisation, was reduced to 6% per annum. 4. The challenge in this original petition is against the order in E.A No.8 of 2022 in E.P No.3 of 2016 by which the Family Court, Pala calculated interest for the alternate relief of market value of the gold @ 6 % per annum from 26.07.2019 i.e, the date of disposal of Mat. Appeal No.173 of 2013. According to them, the interest has to be calculated from the date of disposal of RP No.175 of 2021 i.e., 17.05.2022. 5. Obviously, if the judgment debtors returned the cash, gold and the articles within one month of the decree as directed, the default clause will not have any application at all. But, once there is default, the alternate relief granted will come into operation, with interest @ 6% from the date of original decree i.e., 01.12.2012. The calculation in the E.P is as simple as that, OP(FC) No.540 of 2022 5 and the deposit/payment if any made meanwhile, has to be given credit also. It is also trite law, that the execution court cannot go behind the decree. 6. Now let us see whether Ext.P5 order is in conformity with the above legal proposition, and whether that order suffers any illegality or impropriety warranting interference by this Court. 7. Heard learned counsel for the original petitioners/judgment debtors and learned counsel for the respondent/decree holder. 8. In Ext.P5 order, the Family Court found that by depositing Rs.9 lakh by the judgment debtors, during pendency of the review petition, relief (a) granted in the decree was fully satisfied and moreover, there was excess payment of Rs.29,399/by the judgment debtors. But, it seems that the learned Family Court Judge did not calculate interest @ 6% for the principal amount of Rs.8,70,601/- granted on relief (a), from the date of decree till the date of deposit of the amount. If so, that calculation is not correct and the learned Family Court Judge has to recalculate the same with 6% interest. 9. Coming to relief (b) in the decree, according to the original petitioners/judgment debtors, they were ready to return OP(FC) No.540 of 2022 6 the entire gold ornaments as per the decree, and only based on that submission, this Court, in OP(FC) No.261 of 2021, ordered that the default clause on non return of gold ornaments will have to be taken into account, with reference to the date on which the appeal or review has been disposed of. It is true that they had filed E.A No.5 of 2021 in E.P No.3 of 2016 for permitting them to return the gold to the respondent/decree holder. According to them, since the Family Court rejected their prayer, they could not return the gold. They have no case that they ever tried to deposit the gold before the Family Court, to comply with the decree. Even then since the original petitioners are willing to return the entire gold to the respondent/decree holder, they can be afforded an opportunity to return 53 sovereigns of gold in specie. If the gold ornaments are not returned by the judgment debtors, then the alternate relief with interest will have to be enforced against the judgment debtor as per the decree. 10. The decree holder filed O.P No.1164 of 2010 for recovery of money and gold in the year 2010. She obtained a decree in her favour on 01.12.2012. The appeal preferred by the judgment debtors was dismissed on 26.07.2019. The review petition filed by the judgment debtors in the year 2021 was disposed on 17.05.2022. From the date of decree in the year OP(FC) No.540 of 2022 7 2012, till the date of order in the review petition, ten years elapsed and those facts are not in dispute. 11. It is a matter of common knowledge that during the last ten years, the value of gold has been skyrocketed like anything and now it has reached Rs.44,520/- per sovereign based on data available in the Internet. The delay in disposing the appeal or the review petition cannot take away the relief granted to the decree holder unless it is set aside or modified in such proceedings. If the judgment debtors could escape payment of interest for the last ten years in spite of a decree passed against them, it will work out gross injustice to the decree holder. Family Courts cannot keep a blind eye towards ground realities in life. ## 12. In _**Syamini S Nair** vs._ _**Sreekanth**_ (2022 (2) KLT 896, we had observed in paragraph 21 as follows: “21. The alternative relief of value of gold as on the date of decree also may not work out justice always. If there is appeal against the judgment and decree it may take years together for its disposal, and by that time, the price of gold might have gone beyond proportions. If the respondent / husband is returning the gold ornaments in specie, there is no problem. But, in - many cases, we find that, even if the husband or in laws are possessing the gold ornaments of the wife, they find it convenient to pay the alternative relief of its market value on the date of purchase, date of petition or even the date of decree as the case may be, since it may be much less than the actual market rate of gold ornaments held by them. Moreover there is every OP(FC) No.540 of 2022 8 chance for protracting the matter indefinitely, if ultimately, they need to pay only a meagre amount towards gold value, which was prevailing years back. It will result in gross injustice to the appellant/wife and unlawful enrichment to the respondent/ husband”. 13. As far as relief © granted in the decree, with respect to almirah and dress, after a long lapse of 10 years, it may not be of any use to the decree holder. At least that part of the decree could have been complied with by the judgment debtors within the period stipulated in the decree. Since there is default, the original petitioners/judgment debtors are liable for the alternate relief, with 6% interest from the date of decree till the date of realisation. Learned Family Court Judge has to recalculate the due amount accordingly. 14. If the original petitioners/judgment debtors are ready to return the entire gold ornaments as per the decree, they can avoid the alternate relief and also the interest. So, the learned Family Court Judge has to provide an opportunity to the original petitioners/judgment debtors to return 53 sovereigns of gold ornaments to the decree holder within a period of 15 days from the date of this judgment, on satisfying its quantity and purity. If they fail to return the gold as above, then the alternate relief with interest at 6% has to be calculated and recovered, from the OP(FC) No.540 of 2022 9 date of original decree ie. 01.12.2012, till the date of realisation. 15. In the result, Ext.P5 order is set aside and the learned Family Court, Pala has to recalculate the amount due under the decree, as directed above, and execute the decree without further delay, at any rate, within a period of two months from the date of this judgment. The Registry of this Court has to forward a copy of this judgment to the Family Court, Pala, for complying with the directions, within the time stipulated. Accordingly, the above OP(FC) stands allowed. Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** Sd/- **SOPHY THOMAS JUDGE** smp OP(FC) No.540 of 2022 10 ## **`APPENDIX OF OP (FC) 540/2022`** ``` PETITIONEREXHIBITS ``` ``` ExhibitTRUECOPYOFTHEORDERDATED17-05-2022INR.P. P-1NO.175OF2021OFTHISHON'BLECOURT ExhibitTRUECOPYOFTHEJUDGMENTDATED29-06-2022IN P-2O.P.(FC)NO.261OF2021OFTHISHON'BLECOURT ExhibitTRUECOPYOFE.A.NO.8OF2022INE.P.NO.3OF P-32016INO.P.NO.1164OF2010FILEDBYTHE RESPONDENTHEREINASPETITIONER/DECREEHOLDER BEFORETHEFAMILYCOURTATPALADATED25-07-2022 ExhibitTRUECOPYOFTHEOBJECTIONFILEDBYTHE P-4PETITIONERSINE.A.NO.8OF2022INE.P.NO.3 OF2016INO.P.NO.1164OF2010BEFORETHE FAMILYCOURTATPALADATED25-07-2022 ExhibitTRUECOPYOFTHEORDERDATED03-08-2022INE.A. P-5NO.8OF2022INE.P.NO.3OF2016OFTHE FAMILYCOURT,PALA RESPONDENT’SEXTS: ExhibitAtruecopyoftheorderdated31-05-2016inI.A R1977/2016inMatappeal173/2013oftheHon'ble HighCourt. ExhibitAtruecopyofthestatusofSLP4489/2020 R2showingthedateoffilingbeforetheHon'ble SupremeCourt. Exhibit ``` ``` AtruecopyofdairyproceedingsinExecution R3PetitionNo.03/2016pendingbeforetheFamily Court,Pala. ``` ``` Exhibit ``` ``` R4TruecopyoftheorderdismissingtheSLPNo 4489/2020on05-02-2021bytheHon'bleSupreme Court. ``` OP(FC) No.540 of 2022 11 ``` ExhibitAtruecopyofthejudgmentinOP(FC)No.518of R52020dtd.5.3.21ofHon’bleHighCourt. ``` ``` ExhibitAtruecopyoftheE.ANo.5/2021inE.P03/2016 R6filedbeforetheFamilyCourtPala. Exhibit R7ThecopyoftheorderdismissingtheE.A No.5/2016videorderdated24-03-2021ofFamily CourtPala. ``` ``` ExhibitAtruecopyofthepetitionandaffidavitfiled R8asE.ANo06/2021inE.P03/2016ofFamilyCourt Pala. ``` ``` ExhibitAtruecopyoftheinterimorderdated R908-04-2021inO.P(F.C)No261/2021onthefile oftheHon'bleHighCourt. ``` ``` ExhibitAtruecopyofthejudgment17-05-2022inReview R10PetitionNo175/2021onthefileofthisHon'ble Court. ``` ``` ExhibitAtruecopyofthejudgmentdtd29-06-2022in R11O.P(F.C)No261/2021oftheHon'bleHighCourt. ``` ``` ExhibitAtruecopyoftheobjectionsfiledbythe R12petitionershereininE.ANo8/2022inE.P 03/2016inO.P1164/2010beforetheFamilyCourt Pala. ```