Mubeena and Nizar A. v Farha Salim and Others

# **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 25[TH] DAY OF JANUARY 2023 / 5TH MAGHA, 1944 OP (FC) NO. 664 OF 2022 AGAINST EXHIBIT -P6 ORDER DATED 16.04.2022 IN I.A.NO.1 OF 2020 IN O.P.NO.1299 OF 2020 ON THE FILE OF FAMILY COURT,** ## **ATTINGAL** ## **PETITIONERS/COUNTER PETITIONERS 3 & 4/RESPONDENTS 3 & 4:** **1 MUBEENA AGED 29 YEARS D/O.SHAHILA BEEVI, NIZAR MANZIL, ARUKIL, KUTTICHAL P.O., MANNOORKARA VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM, PIN - 695574** **2 NIZAR.A. AGED 38 YEARS S/O.AHAMMADALI, NIZAR MANZIL, ARUKIL, KUTTICHAL P.O., MANNOORKARA VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM, PIN - 695574** **BY ADV. A.S.SHAMMY RAJ** **RESPONDENTS/PETITIONER & COUNTER PETITIONERS 1 &** ## **2/PETITIONER & RESPONDENTS 1 & 2:** **1 FARHA SALIM AGED 27 YEARS D/O.SAJITHA BEEVI, SUWAIDI, PALLIPURAM P.O., PALLIPPURAM VILLAGE,** 2 O.P.(FC) No.664 of 2022 ## **THIRUVANANTHAPURAM, PIN - 695316** **2 MUNEER AGED 31 YEARS S/O.MUHAMMED THAHA, MUNEER MANZIL, MANDHIKALAM, PARUTHIPALLY, KUTTICHAL P.O., MANOORKARA VILLAGE, NEDUMANGADU,** **THIRUVANANTHAPURAM, PIN - 695574** **3 SHAHILA BEEVI AGED 54 YEARS W/O.MUHAMMED THAHA, MUNEER MANZIL, MANDHIKALAM, PARUTHIPALLY, KUTTICHAL P.O., MANOORKARA VILLAGE, NEDUMANGADU, THIRUVANANTHAPURAM, PIN - 695574** **BY ADV. SARAT R S Reghu Sathy** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 06.01.2023, THE COURT ON 25.01.2023 DELIVERED THE FOLLOWING:** 3 ## O.P.(FC) No.664 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. Respondents Nos.3 and 4 in O.P.No.1299 of 2020 on the file of the Family Court, Attingal have filed this Original Petition under Article 227 of the Constitution of India. They are aggrieved by Ext.P6 order dated 16.04.2022 in I.A.No.1 of 2020 in the said O.P. As per the said order, the immovable property of the 2[nd] petitioner also was attached invoking the provisions of Order XXXVIII, Rule 6 of the Code of Civil Procedure, 1908. 2. On 05.12.2022, notice was directed to be served on the respondents. Notice was duly served on the respondents. The 1[st] respondent entered appearance through her learned counsel. 3. Heard the learned counsel appearing for the petitioners and also the learned counsel appearing for the 1[st] respondent. 4. O.P.No.1299 of 2020 was filed by the 1[st] respondent. She is the wife of the 2[nd] respondent, who is the 4 ## O.P.(FC) No.664 of 2022 son of the 3[rd] respondent. The petitioners are the sister of the 2[nd] respondent and her husband. 5. The 1[st] respondent filed O.P.No.1299 of 2020 seeking a decree dissolving her marriage with the 2[nd] respondent, which was solemnized on 22.11.2017. The further relief claimed in the O.P. is return of gold ornaments, movables and realisation of money. In that O.P. the 1[st] respondent filed I.A.No.1 of 2020 seeking attachment of the immovable property scheduled thereto, the 2[nd] item of which belongs to the 2[nd] petitioner. The 1[st] respondent quantified the total claim as Rs.48,66,760/- and in order to secure realisation of that amount, in the event of granting a decree in her favour, she sought attachment. These petitioners filed objection, a copy of which is Ext.P4. They contended that the petition schedule item No.2 property belongs to the 2[nd] petitioner as he obtained it by virtue of a settlement deed executed by his father and that the building thereon was constructed by him availing loan from various institutions, including from his provident fund. He works in Survey 5 ## O.P.(FC) No.664 of 2022 Department and he has availed loan for the construction of the building by mortgaging the said property. The allegation of the 1[st] respondent that her gold ornaments were pawned and making use of that amount, the building was constructed, has been denied by the petitioners. 6. The Family Court, after hearing both sides, found that prima facie there was possibility for granting a decree in favour of the 1[st] respondent, the objections raised by the petitioners are untenable and no security was furnished in terms of the notice issued under Order XXXVIII, Rule 5 of the Code. Accordingly, the property was held under attachment. 7. The learned counsel appearing for the petitioners would contend that the objections raised by the petitioners were not even adverted to and order of attachment was passed in a peremptory manner. It is pointed out that there is hardly any pleading in the petition in O.P.No.1299 of 2020, Ext.P1 or in the affidavit filed in support of I.A.No.1 of 2020, Ext.P2 that the 2[nd] petitioner misappropriated the gold 6 O.P.(FC) No.664 of 2022 ornaments. The learned counsel accordingly would contend that the attachment was ordered without any rhyme or reason and the same is liable to be set aside. 8. A Full Bench of this Court in **Sadasivan K. v. Surendradas [2020 (5) KHC 461]** explained about the precarious nature of an attachment before judgment. It was held,- “28. Courts must bear in mind that an order of attachment before judgment is a drastic remedy and powers should be exercised with utmost care and caution, as it may likely to cause extreme prejudice to the defendant. Since the court is expected to act with utmost circumspection before issuing an order of attachment, it must ensure that the affidavit filed by the applicant contains all the relevant facts to clearly establish that the defendant, with an intent to obstruct or delay the execution of a decree that may be passed against him, is about to dispose of whole or any part of his property. Vague and general allegations in the affidavit are not sufficient to grant an order under the above provision. It is to be remembered that attachment before judgment is not a course to be adopted in a routine manner. Facts that the suit is yet to be tried and the defence by the opposite party is yet 7 O.P.(FC) No.664 of 2022 to be tested also should be kept in mind. It is trite, this process is never meant as a machinery for the plaintiff to coerce the defendant to agree to the terms set by him.” 9. The essential claim of the 1[st] respondent is that her gold ornaments were entrusted with the 2[nd] respondent, her husband and also the 3[rd] respondent-mother-in-law. It is contended that the 1[st] petitioner, who is the sister-in-law used to harass her. Regarding the appropriation of gold ornaments by the petitioners only contention in Exts.P1 and P2 is that the 1[st] respondent learnt that the gold ornaments entrusted with respondent Nos.2 and 3, were given to the petitioners, to be pawned for the purpose of obtaining money for constructing the house in the property of the 2[nd] petitioner. 10. The fact that the petition schedule property belongs to the 2[nd] petitioner is undisputed. The petitioners have produced several documents in order to substantiate their contention that availing loan from various institutions, including from the Government by mortgaging the petition schedule property, they had carried out the construction. The 8 ## O.P.(FC) No.664 of 2022 Family Court did not consider any of the said materials while passing Ext.P6 order. Only on the basis of a vague allegation that the 1[st] respondent learnt that her gold ornaments were handed over to the petitioners, the order of attachment was granted. 11. The contention of the 1[st] respondent is that the gold ornaments were pawned by the petitioners. If so, it must be borne by records. No such document has been brought on record. It is true that at the stage of ordering an attachment before judgment, a roving enquiry is not required. Here, the property of a relative of the husband is sought to be attached. Only connection alleged is that as per her knowledge, her gold ornaments of the 1[st] respondent was pawned for the purpose of raising money for the construction in the property of the 2[nd] petitioner. The petitioners produced sufficient documents to substantiate that the construction was made utilising the money raised by the 2[nd] petitioner by other means. Evidently, the property was obtained by the 2[nd] petitioner from his father, through a settlement deed. In the aforesaid 9 ## O.P.(FC) No.664 of 2022 circumstances, the attachment ordered by the Family Court is quite unjustifiable. There is no reason for holding that the 1[st] respondent can proceed against the property belonging to the 2[nd] petitioner. Therefore, Ext.P6 order insofar as the second item of the properties, which belongs to the 2[nd] petitioner, does not sustain in law and it is liable to be set aside. Accordingly, this Original Petition is allowed in part and Ext.P6 insofar as it relates to the second item of the petition schedule properties is set aside. I.A.No.1 of 2020 in O.P.No.1299 of 2020 stands dismissed to the extent it relates to the second item of the petition schedule properties. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.664 of 2022 ## **APPENDIX OF OP (FC) 664/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1** - **TRUE COPY OF THE ORIGINAL PETITION IN O.P. NO.1299/2020 ON THE FILE OF FAMILY COURT, ATTINGAL DATED 19.10.2020** - **Exhibit P2** - **TRUE COPY OF THE INTERLOCUTORY APPLICATION IN I.A. NO.1/2020 IN O.P. NO.1299/2020 ON THE FILE OF FAMILY COURT, ATTINGAL DATED 19.10.2020** - **Exhibit P3 TRUE COPY OF THE INTERIM INJUNCTION ORDER DATED 18.9.2020 IN I.A. NO.1054/2020 IN O.P. NO.802/2020 ON THE FILE OF THE FAMILY COURT, NEDUMANGAD 18.9.2020** - **Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED AGAINST I.A. NO.1/2020 IN O.P. NO.1299/2020 ON THE FILE OF FAMILY COURT, ATTINGAL DATED 8.12.2021** - **Exhibit P5 TRUE COPY OF THE OBJECTION FILED AGAINST O.P. NO.1299/2020 ON THE FILE OF FAMILY COURT, ATTINGAL DATED 22.10.2022** - **Exhibit P6** - **TRUE COPY OF THE CONDITIONAL ATTACHMENT ORDER DATED 11.4.2022 IN I.A. NO.1/2020 IN O.P. NO.1299/2020, OF THE FAMILY COURT, ATTINGAL** - **RESPONDENT'S EXHIBITS** - **Exhibit -R1** **TRUE COPY OF ORDER PASSED IN TR.P(C), 487/2022 DATED 12.01.2023**