O.P.(FC) No.12 of 2023 (against the order dated 22.11.2022 in E.P.No.75 of 2017 in O.P.No.212 of 2007 of the Family Court, Ettumanoor)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 12[TH] DAY OF JANUARY 2023 / 22ND POUSHA, 1944 O.P.(FC) NO. 12 OF 2023 AGAINST THE ORDER DATED 22.11.2022 IN E.P.NO.75 OF 2017 IN O.P.NO.212 OF 2007 OF THE FAMILY COURT, ETTUMANOOR PETITIONER:** **SUKUMARAN, AGED 81 YEARS S/O. KOCHUKUNJU, KOTHAMMASSERIL HOUSE PUTHENPARAMBH, CHENGALAM. P.O, KOTTAYAM, PIN – 686585.** **BY ADVS. MANU ROY DEVADAS H. MALLAN** ## **RESPONDENT/S:** **1 PONNAMMA, D/O. KOCHUKUTTY, PATHIL HOUSE, MOOLAVATTOM. P. O, KOTTAYAM, PIN – 686012. 2 RENJITH @ KANNAN S/O. SUKUMARAN, KOTHAMMASSERIL HOUSE PUTHENPARAMBIL, CHENGALAM. P. O, KOTTAYAM, PIN – 686585.** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.12 of 2023 ## **JUDGMENT** ## P.G.Ajithkumar, J. This Original Petition under Article 227 of the Constitution of India was filed by the 2nd judgment debtor in E.P.No.75 of 2017 in O.P.No.212 of 2007 on the file of the Family Court, Kottayam at Ettumanoor. O.P.No.212 of 2007 was filed by the 1[st] respondent seeking return of gold ornaments and money. That original petition was decreed as per the judgment dated 10.07.2018 allowing the 1[st] respondent to realise Rs.20,000/and also 25 sovereigns of gold or its money equivalent of Rs.2 lakhs, together with interest. The petitioner has carried the matter in appeal before this Court by filing Mat.Appeal No.861 of 2008, but that appeal was dismissed for default. The petitioner would contend that only recently he came to know about the dismissal of that appeal, and therefore he filed M.J.C.No.105 of 2022 seeking to readmit the appeal (Ext.P4) along with an application to condone the delay of 1262 days. Pending consideration of the said interlocutory applications, the Execution Court is proceeding with the Execution Petition. The petitioner therefore seeks an order directing the Family Court to 3 ## O.P.(FC) No.12 of 2023 keep in abeyance all further proceedings in E.P.No.75 of 2017 in O.P.No.212 of 2007 till the disposal of Ext.P4. 2. Heard the learned counsel appearing for the petitioner. Considering the relief proposed to be granted, service of notice on the respondent is dispensed with. 3. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasijudicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the 4 O.P.(FC) No.12 of 2023 Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 4. Jurisdiction of the High Court under Article 227 was examined in detail by this Court in **Subaida v. Deputy Tahsildar (RR), Thrissur District and others [2019 KLT SN 68)** (rendered by one among us, Anil K. Narendran J), where it was held, “The power is discretionary and has to be exercised very sparingly on equitable principle. This reserve and exceptional power of judicial intervention is not to be 5 O.P.(FC) No.12 of 2023 exercised just for grant of relief in individual cases, but should be directed for promotion of public confidence in the administration in the larger public interest, whereas Article 226 is meant for protection of individual grievances. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline. The object of superintendence under Article 227, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court. The supervisory jurisdiction of the High Court under Article 227 of the Constitution is limited, where interference qua an interlocutory order of a subordinate court or tribunal is concerned. In such matters, the High Court has to consider the question as to whether such an interlocutory order of the subordinate court or tribunal was vitiated due to want of jurisdiction or that the said Court or tribunal had exceeded its jurisdiction or that the order passed by it had resulted in failure of justice.” 6 O.P.(FC) No.12 of 2023 5. The relief claimed in this original petition is to issue a direction to the Family Court, Kottayam at Ettumanoor to keep further proceedings in E.P.No.75 of 2017 in O.P.No.212 of 2007 in abeyance till the disposal of Ext.P4. In the light of the law laid down in the aforesaid decisions, the power under Article 227 of the Constitution of India cannot be invoked solely for the purpose of staying a proceedings pending before a subordinate court. This Original Petition as it stands, is not maintainable. 6. However, considering the fact that the M.J.C. fled by the petitioner stating that on account of the lapse on the part of his counsel alone, he could not pursue the appeal filed by him resulting in its dismissal for default, it is only appropriate for this Court to exercise its inherent power under Article 227 of the Constitution of India to direct the Family Court to take a decision in E.A.No.1 of 2022, on Ext.P6, which was filed by the petitioner before the Family Court for a temporary stay of the execution proceedings. Pointing out the fact that M.J.C.No.105 of 2022 filed by the petitioner seeking to re-admit Mat.Appeal No.861 of 2008 is pending consideration of this Court, he has filed E.A.No.1 of 2022 in 7 ## O.P.(FC) No.12 of 2023 E.P.No.75 of 2017. It is for the Family Court to take a decision in that execution application. In such circumstances, we decline to grant an order as prayed by the petitioner. However, the Family Court, Kottayam at Ettumanoor is directed to dispose of Ext.P6, E.A.No.1 of 2022 in E.P.No.75 of 2017 in O.P.212 of 2007 within two weeks from the date of production of a certified copy of the judgment and till then to keep in abeyance the proceedings in E.P.No.75 of 2017. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 8 O.P.(FC) No.12 of 2023 ## **APPENDIX OF OP (FC) 12/2023** **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF E.P NO: 75/17 OF FAMILY COURT, ETTUMANOOR DATED 30/11/17 Exhibit P2 TRUE COPY JUDGMENT DATED 10-07-2018 OF FAMILY COURT, ETTUMANOOR IN O.P NO. 212/07** **Exhibit P3 TRUE COPY ORDER IN IA NO 3336/08 IN MAT APPEAL 861/2008 HON'BLE HIGH COURT OF KERALA DATED 3/12/2008 Exhibit P4 TRUE COPY RESTORATION PETITION NO: M.J.C 105/2022 DATED 6/10/22 Exhibit P5 TRUE COPY OF PETITION TO CONDONE THE DELAY DATED 6/10/2022 Exhibit P6 TRUE COPY OF PETITION FILED AS E.A NO :1/22 IN E.P 75/17 OF FAMILY COURT , ETTUMANOOR DATED 6/10/2022 Exhibit P7 TRUE COPY ORDER DATED 22-11-2022 IN E.P NO. 75/2017 OF FAMILY COURT ETTUMANOOR**