K. T. THOMAS v. EMILY SAM THOMAS, DINA THOMAS, EYENA THOMAS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 O.P.(FC) NO. 670 OF 2022** **AGAINST THE ORDER DATED 17.10.2022 IN E.P.NO.86 OF 2017 IN O.P.NO.1120 OF 2012 ON THE FILE OF THE FAMILY COURT,** ## **THIRUVANANTHAPURAM** ## **PETITIONER:** **K. T. THOMAS** **AGED 55 YEARS, S/O. K. T. THOMAS, DOOR NO.7-A2, ABM TOWERS, KADAVANTHARA PO, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN – 682020.** **BY ADV SURAJ.S** ## **RESPONDENTS:** **1 EMILY SAM THOMAS AGED 53 YEARS, D/O. M. V. SAMUEL, MULAMOOTTIL HOUSE, BAPUJI NAGAR, MEDICAL COLLAGE PO, THIRUVANANTHAPURAM, NOW RESIDING AT FLAT NO.4-B 4TH FLOOR, LASAN LAVANYA, NO. 16/10, TEMPLE AVENUE, SRINAGAR COLONY, SAIDAPET, CHENNAI, PIN – 600015.** **2 DINA THOMAS, AGED 26 YEARS, D/O. K. T. THOMAS, MULAMOOTTIL HOUSE, BAPUJI NAGAR, MEDICAL COLLAGE PO, THIRUVANANTHAPURAM, NOW RESIDING AT FLAT NO.4-B 4TH FLOOR, LASAN LAVANYA, NO. 16/10, TEMPLE AVENUE, SRINAGAR COLONY, SAIDAPET, CHENNAI, PIN – 600015.** 2 O.P.(FC) No.670 of 2022 **3 EYENA THOMAS, AGED 24 YEARS, D/O. K. T. THOMAS, MULAMOOTTIL HOUSE, BAPUJI NAGAR, MEDICAL COLLAGE PO, THIRUVANANTHAPURAM, NOW RESIDING AT FLAT NO.4-B 4TH FLOOR, LASAN LAVANYA, NO. 16/10, TEMPLE AVENUE, SRINAGAR COLONY, SAIDAPET, CHENNAI, PIN – 600015.** **BY ADVS. AJIT JOY SAYUJYA** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.670 of 2022 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner is the judgment debtor in O.P.No.1120 of 2012. He challenges Ext.P9 order of the Family Court, Thiruvananthapuram in E.P.No.86 of 2017 in O.P.No.1120 of 2012 by which the respondents/decree holders were directed to take further steps for execution of the decree by rejecting the plea of discharge raised by the petitioner. 2. `On 06.12.2022, urgent notice was ordered to be served on the respondents. The respondents entered appearance through their learned counsel. As per order dated 13.03.2023 the execution court was directed to defer coercive steps, if any, taken against the petitioner. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. The learned counsel appearing for the petitioner would submit that the contentions raised by the petitioner in the objection filed in E.P.No.86 of 2017 were not considered by the 4 ## O.P.(FC) No.670 of 2022 Family Court. Ext.P9 order by which the respondents were allowed to proceed with the execution petition reads as follows:- “Petition for execution. Decree holders are directed to proceed with the E.P. and directed to take further steps for execution of the decree. Judgment debtor's claim that he had discharged the decree debt is rejected. For further steps to 05.12.2022.” 5. Ext.P5 is the objection filed by the petitioner in E.P.No.86 of 2017. Discharge of the decree debt is one among the contentions raised in Ext.P5. When discharge of a debt due under a decree is pleaded, the court executing the decree has to consider whether there is payment of money due under the decree as per any one of the modes prescribed in Order XXI, Rule 1 of the Code of Civil Procedure, 1908. If accord and satisfaction is pleaded, that also needs to be considered. After considering the contentions raised by the decree holder as well as the judgment debtor, an order supported by reasons is required to be rendered by the court. When the order impugned does not contain any reason in support of the conclusion, it is not possible to sustain it. 5 O.P.(FC) No.670 of 2022 6. In **Breen v. Amalgamated Engineering Union [1971 (1) All. E.R. 1148]** Lord Denning, M.R. Observed that, the giving of reasons is one of the fundamentals of good administration. In **Alexander Machinery (Dudley) Ltd. v. Crabtree [1974 ICR 120]** it was observed that, failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at. 7. In **Commissioner of Police, Bombay v. Gordhandas Bhanji [AIR 1952 SC 16]** the Apex Court has held that, public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language 6 O.P.(FC) No.670 of 2022 used in the order itself. Following the principle laid down in **Gordhandas Bhanji’s case (supra)** , the Apex Court has reiterated in **Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405]** that, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out. 8. Following the principle laid down in the decisions referred to above, the Apex Court in **Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar [(2003) 4 SCC 364]** held that, reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutable face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the 7 O.P.(FC) No.670 of 2022 power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The ‘inscrutable face of a sphinx’ is ordinarily incongruous with a judicial or quasi - judicial performance. 9. The object underlying the rules of natural justice is to ensure that process was transparently done and there is fair play. Therefore, there is an absolute necessity to give reasons in support of the conclusion in every order. At the same time, it is not the requirement that the reasons should be stated elaborately. What is necessary is to state the reasons clearly and explicitly so as to indicate that due consideration has been given to the point in controversy. Ext.P9, which is impugned in this O.P. does not contain any reason and therefore the same is liable to be set aside. Hence, this original Petition is allowed. Ext.P9 order dated 8 O.P.(FC) No.670 of 2022 17.10.2022 is set aside. The Family Court, Thiruvananthapuram will consider the matter afresh within a period of three weeks from the date of production of a certified copy of this judgment. Till a decision in the matter is taken, the Family Court shall not take coercive steps against the petitioner. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 9 O.P.(FC) No.670 of 2022 ## **APPENDIX OF OP (FC) 670/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1** - **A TRUE COPY OF THE EXECUTION PETITION DATED 28.07.2017 IN EP NO. 86 OF 2017 IN OP NO. 1120 OF 2012 ON THE FILES OF THE FAMILY COURT, THIRUVANANTHAPURAM FILED BY THE RESPONDENTS AGAINST THE PETITIONER** - **EXHIBIT P2 A TRUE COPY OF THE AWARD DATED 29.06.2013 IN OP NO. 1120 OF 2012 PASSED IN THE LOK ADALAT** - **EXHIBIT P3 A TRUE COPY OF THE STATEMENT REGARDING THE VARIOUS PAYMENTS EFFECTED BY THE PETITIONER TO THE RESPONDENTS FROM JANUARY 2013 TO MAY 2022 PREPARED BY THE PETITIONER** - **EXHIBIT P4** - **A TRUE COPY OF THE SETTLEMENT DEED NO. 723 OF 2015 DATED 24.03.2015 OF MULANTHURUTHY SRO EXECUTED BY THE PETITIONER IN FAVOUR OF THE RESPONDENTS** - **EXHIBIT P5** - **A TRUE COPY OF THE OBJECTION DATED 17.07.2019 FILED BY THE PETITIONER IN EP NO. 86 OF 2017 BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM** - **EXHIBIT P6** - **A TRUE COPY OF THE AFFIDAVIT DATED 25.01.2020 FILED BY THE 2ND RESPONDENT IN EXHIBIT P1 EXECUTION PETITION** - **EXHIBIT P7** - **A TRUE COPY OF THE ORDER DATED 30.05.2022 IN OP (FC) NO. 305 OF 2022 OF THIS COURT** 10 ## O.P.(FC) No.670 of 2022 **EXHIBIT P8 A TRUE COPY OF THE JUDGMENT DATED 24.08.2022 IN OP(FC) NO. 305 OF 2022 OF THIS HON'BLE COURT EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 17.10.2022 IN EXHIBIT P1 EXECUTION PETITION PASSED BY THE FAMILY COURT, THIRUVANANTHAPURAM**