## **“C.R.”**
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN**
## **&**
## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR**
**TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA, 1944 O.P.(FC) NO. 19 OF 2022**
**AGAINST THE ORDER DATED 06.12.2021 IN E.A.NO.101 OF 2021 IN E.P.NO.2 OF 2020 IN O.S.NO.230 OF 2003 ON THE FILES OF THE FAMILY COURT,KOLLAM**
## **PETITIONERS:**
- **1 D.N.RENJEEVAN AGED 49 YEARS, S/O DHANAPALAN, REVATHY, KUNNADIYIL VEEDU, MUNDAKKAL CHERRY, MUNDAKKAL VILLAGE FROM NIRMALA NIKETHAN, KANNIMEL CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM-691010.**
- **2 DHANAPALAN,**
**AGED 83 YEARS, S/O NARAYANAN, REVATHY, KUNNADIYIL VEEDU, MUNDAKKAL CHERRY, MUNDAKKAL VILLAGE, KOLLAM-691010.**
- **3 NIRMALAKUMARI,**
**AGED 66 YEARS, W/O DHANAPALAN, REVATHY, KUNNADIYIL VEEDU, MUNDAKKAL CHERRY, MUNDAKKAL VILLAGE, KOLLAM-691010.**
**BY ADVS. SADCHITH.P.KURUP V.MADHUSUDHANAN C.P.ANIL RAJ**
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## **RESPONDENTS:**
**1 POURNAMI RAJ AGED 39 YEARS, PUTHUMANGALATHU VEEDU, CHERUMOODU, VELLIMON P O, PERINAD VILLAGE, KOLLAM-691511.**
**2 P.R.RAJU AGED 67 YEARS, PUTHUMANGALATHU VEEDU, CHERUMOODU, VELLIMON P O, PERINAD VILLAGE, KOLLAM-691511. BY ADV ARUN BABU**
**THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 15.02.2023, THE COURT ON 28.02.2023 DELIVERED THE FOLLOWING:**
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**JUDGMENT “C.R.”**
## P.G. Ajithkumar, J.
Ext.P8 is the order dated 06.12.2021 of the Family Court, Kollam in E.A.No.101 of 2021 in E.P.No.2 of 2020 in O.S.No.230 of 2003. The petitioners have filed the said execution application seeking to dismiss the execution petition
as not maintainable. The Family Court dismissed that application. Feeling aggrieved thereof, the petitioners have filed this Original Petition under Article 227 of the Constitution of India.
2. On 12.01.2022, this Original Petition was admitted and notice was directed to be served on the respondents. Operation of the judgment in O.S.No.230 of 2003 was stayed, to the extent it relates to the recovery of value of the gold ornaments on the condition of deposit of Rs.3,60,000/- within a period of two weeks.
3. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents.
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## 4. O.S.No.230 of 2003 was decreed in part as per the
## judgment dated 15.03.2011. The decree reads,-
“In the result, the suit is partly decreed directing the defendants to return 68.937 sovereigns of gold ornaments or the present value of same, to the 1[st] plaintiff. Defendants 1 to 3 are directed to pay Rs.2,00,000/- with interest at the rate of 9% from the date of suit till the date of decree with future interest at the rate of 6% till realisation to the 1[st] plaintiff. The defendants are directed to return the C-scheduled movables or Rs.31,350/- the value of the same to the 1[st] plaintiff, in default 1[st] plaintiff is allowed to realise the decree amount from the defendants and their properties.”
5. The petitioners appealed in Mat.Appeal No.571 of
2011. This Court modified the said decree as per the judgment dated 26.08.2019 in the appeal. The appellate decree reads,-
“In the result, this Matrimonial appeal is allowed in part as indicated hereinbelow:-
1. Interest is reduced to 6% from the date of decree till the date of realisation.
2. The liabilities of the defendants 2 and 3/ appellants 2 and 3 are limited to 50% of the decree amount with interest and costs and the rest lies with the first defendant.
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3. The return of C-scheduled movables or Rs.31,350/- as value of the same to the plaintiffs stand declined.
4. Regarding all other aspects, the decree of the court below stands confirmed.
5. Considering the facts and circumstances, there will be no order as to costs.”
6. The petitioners have filed E.A.No.101 of 2021 requiring the court to dismiss the Execution Petition as not maintainable. The reasons stated was that the respondentsdecree holders claimed value of the gold as on the date of filing of the E.P.; whereas the decree allowed the value of the gold ornaments as on the date of filing of the suit. The Family Court considered the said contention and also the objection of the respondents in Ext.P7 and held that execution petition was maintainable. The Family Court observed that the appellate decree allows the respondent-decree holder to realise the present market value of the gold ornaments and therefore the claim in the Execution Petition is allowable.
7. The learned counsel appearing for the petitioners would submit that the very claim of the respondents in
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O.S.No.230 of 2003 was to return either the gold ornaments or its value of Rs.3,60,000/-, and therefore, the respondents are not entitled to claim any amount in excess of Rs.3,60,000/-. The contention of the learned counsel is that a claim for more than Rs.3,60,000/- as the value of the gold ornaments is against the decree and the Execution Court has no jurisdiction to enforce such a claim.
8. The learned counsel appearing for the petitioner by placing reliance on the decisions in **William David v. Linu Mary George [2010 (4) KLT 691], Thomas M.Varghese v. Sonia Susan Thomas [2014 (3) KLT 487]** and **Syamini S. Nair and others v. Sreekanth R. [2022 (3) KHC 145]** contended that the Execution Court has no authority to go beyond the decree, although the trial court can order payment of value as an alternative to the decree directing return of gold ornaments in specie.
9. In **William David** (supra) the question was whether the Family Court while considering a claim for return of gold ornaments by the wife, can order payment of value of
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it as a alternative remedy in the absence of claiming such a relief by the wife. This Court after referring to the provisions of Order VII, Rule 7 and Order XXII, Rule 10 of the Code of Civil Procedure, 1908 concluded that in a case where the alternative relief for payment of value of the ornaments is not significantly asked for also, the court is empowered to grant such a decree as an alternative to the return of the movable property.
10. In **Thomas M.Varghese** and **Syamini S.Nair** referred to supra, the question considered was the empowerment of the court while considering the claim of a wife for return of gold ornaments, how far the trial court or the appellate court can mould the relief. Whether the court can order payment of value of the gold ornaments in default of return of the gold ornaments in specie was answered in the affirmative. This Court in both the cases took the view that it is well within the powers of the court to grant a decree for payment of money as an alternative relief. In none of the said decisions, the powers of the Execution Court to decide as to
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value of the gold on what point of time is the entitlement of the decree holder was considered.
11. In this case the question whether or not the decree holder is entitled to realise value of gold ornaments in lieu of the ornaments does not really arise. The decree of the Family Court directs the judgment debtors to return “68.937 sovereigns of gold ornaments or the present value of the same”. In the appellate decree, the said direction was not interfered with, whereby the said clause is merged with the appellate decree and became executable as such. Therefore, the question is whether the respondents-decree holders can claim value of 68.937 sovereigns of gold ornaments as on the date of filing of the Execution Petition.
12. The words used in the decree are “the present value”. The submission of the learned counsel appearing for the petitioners is that since the respondents quantified the value of gold ornaments in the plaint as Rs.3,60,000/-, that has to be taken as the present value. The said contention is untenable. The word “present” indicates “the current point of time”. The relief
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entitled by the respondents is recovery of 68.937 sovereigns of gold ornaments. When the court directed to pay its present value in case the ornaments are not returned, it can only mean that the value at the time when his failure to return the gold ornaments occurs. Even after the appellate decree, the petitioners failed to return the gold ornaments, which resulted in filing of the Execution Petition.
13. In such circumstances, we are of the view that the respondents are entitled to get value of the gold ornaments as on the date of filing of the Execution Petition. This view is appropriate, especially when the decree does not allow any interest for that amount. Accordingly, we hold that the view taken by the Family Court is correct and the impugned order does not require inference.
14. The whole issue has arisen since the decree of the Family Court dated 15.03.2011 lacks clarity. The decree directed the petitioners/judgment debtors to “return 68.937 sovereigns of gold ornaments or the present value of the same”. Either value of the gold ornaments should have been
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quantified and stated in the decree or it should have been specified that value at the time of payment has to be paid. The court is obliged to state in such a decree to pay the value of the gold ornaments in money terms as an alternative relief. If the value is not quantified, the direction shall be to pay the value at the time of making payment. If the value of the gold ornaments is quantified and the amount is stated in the decree, invariably, interest on such amount from the date of decree till the payment shall also to be ordered. We are of the view that every court shall ensure that the decrees it pronounces have sufficient clarity so as to avoid any kind of dispute in relation to the interpretation of the decrees.
With the aforesaid observations, this Original Petition is dismissed.
**Sd/-**
## **ANIL K. NARENDRAN, JUDGE**
**Sd/P.G. AJITHKUMAR, JUDGE**
dkr
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## **APPENDIX OF OP (FC) 19/2022**
## **PETITIONER EXHIBITS**
**EXHIBIT P1**
**COPY OF PLAINT DATED 9.6.2003 IN OS NO.230/2003 ON THE FILES OF FAMILY COURT, KOLLAM.**
- **EXHIBIT P2 COPY OF JUDGMENT DATED 15.03.2011 PASSED IN OS NO.230/2003 BY THE FAMILY COURT, KOLLAM.**
- **EXHIBIT P3 COPY OF DECREE DATED 15.03.2011 PASSED IN OS NO.230/2003 BY THE FAMILY COURT, KOLLAM.**
- **EXHIBIT P4 COPY OF JUDGMENT DATED 26.08.2019 PASSED IN MAT APPEAL NO.517/2011 BY THIS HONOURABLE COURT.**
- **EXHIBIT P5 COPY OF EP NO.2/2020 IN OS NO.230/2003 FILED BY THE RESPONDENTS IN FAMILY COURT, KOLLAM.**
**EXHIBIT P6**
- **COPY OF E.A.NO.101/2021 IN EP NO.2/2020 IN OS NO.230/2003 FILED BY PETITIONERS BEFORE THE FAMILY COURT, KOLLAM.**
**EXHIBIT P7**
- **COPY OF OBJECTION DATED 16.09.2021 FILED BY RESPONDENTS IN EA NO.101/2021 IN EP NO.2/2020 IN OS NO.230/2003.**
- **EXHIBIT P8**
**COPY OF ORDER DATED 6.12.2021 PASSED BY FAMILY COURT, KOLLAM IN E A NO.101/2021 IN EP NO.2/2020 IN OS NO.230/2003.**
