High Court of KeralaDivision Bench2022-12-22Dismissed

O.P.(FC) No.535 of 2022

Case / Petition Number:O.P.(FC) No.535 of 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
P. G. Ajithkumar
Judgment Date: 2022-12-22
Court Decision / Holding: The Original Petition is dismissed. Ext.P6 order lifting the attachment in respect of items 6 and 7 is sustained; attachments over items 1–5 remain as security, and the respondents’ rights as to 6 and 7 are to be respected given other legal representatives’ interests.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Dr. Febin
Aalim Fawas

Respondents

Dr. Fawaz T.
T. Muhammed Kutty
Minu Mumthaz K.

Legal Representation & Advocates

Counsels for Petitioners

• Adv K. Rakesh

Counsels for Respondents

• Adv SASITH M R

Case Synopsis & Summary

This Original Petition (Article 227) challenges Ext.P6, a common order in I.A.Nos.2, 3, 4 and 7 of 2022 in O.P.No.381/2022 before the Family Court, Malappuram, whereby attachment before judgment was partially lifted. The petitioners, Dr. Febin and the minor represented by him, sought to restrain the lifting of attachment over items 6 and 7 of the schedule and contended that Ext.P4 (valuation certificate under the Kerala Stamp Act) is not a valid basis for such action and that the Family Court ought not to have allowed I.A.3 of 2022. The petitioners argued that, if five items (1–5) remain attached, the amount of Rs.62,87,200 claimed in O.P.No.381/2022 would still be secured, and that extending attachment to other properties would be oppressive and improper. The respondents argued that each item has value and that item 3 alone may suffice to satisfy the claim; further, not all rights in items 6 and 7 may vest exclusively in the respondents. The Division Bench relies on Smitha v. P.C.Varghese and Hamda Ammal v. Avadiappa Pathar to hold that attachment must be limited to the extent needed to secure the claim and that non-parties’ rights in properties must be respected. Accordingly, Ext.P6 is upheld against the challenge, and the Original Petition is dismissed, with attachment in respect of items 6 and 7 lifted.

Provisions of Law Cited

Article 227 of the Constitution of IndiaOrder XXXVIII, Rule 10, CPC, 1908Order XXXVIII, Rule 5, CPC, 1908Section 28C of the Kerala Stamp Act, 1959

Legal Doctrines & Maxims

Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit (Order XXXVIII, Rule 10, CPC)
Extent of property required to meet the plaint claim is to be determined by the court prior to the passing of conditional attachment (as discussed in Smitha v. P.C.Varghese)
Attaching the entire property when only a part is necessary can be oppressive and may violate the rights of non-parties (principle from Smitha and related jurisprudence)
Rights of non-parties and other legal representatives in attached properties must be considered (Hamda Ammal v. Avadiappa Pathar)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that Ext.P4 valuation under Section 28C of the Kerala Stamp Act is not a valid basis for lifting attachment and that I.A.No.3 of 2022 should not have been allowed without valid grounds. They argued that the amount claimed could be safeguarded by attachment over items 1–5 alone and that extending attachment to items 6 and 7 prejudices third-party rights; they urged that the court determine the extent of attachment before issuing any conditional order.

Contentions of Respondents

The respondents argued that all attached items have value and that items 6 and 7 are not exclusively owned by the respondents; there exist other legal representatives with rights in those properties, and thus lifting attachments would not defeat the petitioner's claim. They relied on Ext.P4 valuation and invoked the general principle that the court may lift attachment when proper security is furnished and the remaining attached assets are sufficient to satisfy the claim.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Smitha v. P.C.Varghese and another	[2016 (2) KHC 793]	Positive	Cited to establish that the court cannot determine the full extent of attachment at the outset; the extent of attachment should be decided prior to conditional attachment, and excessive attachment can be oppressive.
Hamda Ammal v. Avadiappa Pathar and others	[(1991) 1 SCC 715]	Positive	Cited to support the principle that attachment before judgment shall not affect rights of non-parties to the suit, justifying the lifting of attachment where third-party rights exist.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **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 22[ND] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944 O.P.(FC) NO. 535 OF 2022 AGAINST THE ORDER DATED 15.06.2022 IN I.A.NOS.2, 3, 4 AND 7 OF 2022 IN O.P.NO.381 OF 2022 ON THE FILE OF THE FAMILY COURT, MALAPPURAM** ## **PETITIONERS:** **1 DR. FEBIN, AGED 36 YEARS, D/O.DR. KUNHALAN, KOZHISSERI, PLEASANT HOUSE, CHANGUVETTY P.O., KOTTAKKAL, MALAPPURAM DISTRICT, PIN – 676501.** - **2 AALIM FAWAS, AGED 6 YEARS,** **MINOR, REPRESENTED BY MOTHER, 1ST PETITIONER, DR. FEBIN, AGED 36 YEARS, D/O.DR. KUNHALAN, KOZHISSERI, PLEASANT HOUSE, CHANGUVETTY P.O., KOTTAKKAL, MALAPPURAM DISTRICT, PIN – 676501.** **BY ADV K.RAKESH** ## **RESPONDENTS:** **1 DR. FAWAZ T., AGED 36 YEARS, S/O.T. MUHAMMED KUTTY, ASHIYANA HOUSE, MYLAPPURAM P.O., MALAPPURAM DISTRICT, PIN – 676519.** **2 T. MUHAMMED KUTTY, AGED 64 YEARS, S/O.KUTTY ALI, ASHIYANA HOUSE, MYLAPPURAM P.O., MALAPPURAM DISTRICT, PIN – 676519.** 2 ## O.P.(FC) No.535 of 2022 **3 MINU MUMTHAZ K., AGED 58 YEARS, W/O.DR. T. MUHAMMED KUTTY, ASHIYANA HOUSE, MYLAPPURAM P.O., MALAPPURAM DISTRICT, PIN – 676519.** **BY ADV SASITH M R** **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 08.12.2022, THE COURT ON 22.12.2022 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.535 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioners in O.P.No.381 of 2022 on the file of the Family Court, Malappuram have filed this Original Petition under Article 227 of the Constitution of India. They challenge Ext.P6 order insofar as it lifts the attachment in respect of item Nos.6 and 7 properties in the schedule attached to I.A.No.2 of 2022 in that O.P. 2. As per order dated 12.10.2022, parties were directed to maintain status quo in respect of Ext.P6 order for a period of one month. The interim order was extended subsequently. 3. Pursuant to notice the respondents entered appearance through their learned counsel. 4. Heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents. 5. The 1[st] petitioner is the wife of the 1[st] respondent. The 2[nd] petitioner is their minor child. Following marital 4 O.P.(FC) No.535 of 2022 discord, the petitioners have filed O.P.No.381 of 2022 seeking realisation of a sum of Rs.62,87,200/- towards past maintenance, value of gold ornaments and movables, hospital expenses, etc. Ext.P1 is a copy of the said original petition. The petitioners filed I.A.No.2 of 2022 in that O.P. seeking attachment of the immovable properties, which comprised seven items. Attachment before judgment was ordered. The respondents filed I.A.No.3 of 2022 seeking to lift attachment in respect of item Nos.6 and 7 properties. Ext.P3 is a copy of the said petition. The respondents have produced a valuation certificate in respect of item No.3 property, which is Ext.P4. The petitioners resisted I.A.No.3 of 2022 by filing a counter, a copy of which is Ext.P5. The Family Court, after hearing both sides, rendered Ext.P6 common order by which I.A.No.3 of 2022 and also I.A.Nos.4 and 7 of 2022 were disposed of. Attachment in respect of item Nos.6 and 7 properties was removed. The petitioners are aggrieved by that part of the common order. 6. The learned counsel appearing for the petitioners would submit that Ext.P4 is not a valid document, on which 5 ## O.P.(FC) No.535 of 2022 reliance could be placed and considering the amount to be realised in O.P.No.381 of 2022, the Family Court ought not to have allowed I.A.No.3 of 2022. The learned counsel further contended that without assigning any valid reason, I.A.No.3 of 2022 was allowed. 7. The learned counsel appearing for the respondent, on the other hand, would contend that each item of the properties scheduled to I.A.No.2 of 2022 is valuable and item No.3 alone is enough to satisfy the claim of the petitioners. It is pointed out that the respondents are not the absolute owners of item Nos.6 and 7 properties, but other legal representatives of the father, the predecessor-in-interest, also have share in the property and the order of attachment in respect of the property of strangers, at any rate, should not have been made. 8. Ext.P2 is a copy of I.A.No.2 of 2022. Item No.1 in the schedule is 3.23 Ares of land, item No.2 is 8.617, item No.3 is 10.932 Ares equivalent to 27 cents with an apartment complex, item No.4 is 33.3 Ares equivalent to 82¼ cents of 6 ## O.P.(FC) No.535 of 2022 land and item No.5 is 10.61 Ares. The respondents have only 3/13 share in item Nos.4 and 5. When attachment in respect of item Nos.6 and 7 properties is lifted as per Ext.P6 order, what remains is the attachment relating to item Nos.1 to 5. The case of the petitioners is that those five items of properties are not enough to satisfy the claim of Rs.62,87,200/- in the original petition. 9. Ext.P4 is a certificate issued under Section 28C of the Kerala Stamp Act, 1959. The land and building are valued as per Ext.P4. It is true that valuation in Ext.P4 is not intended to be used as evidence in a court of law. But it cannot be said that such a document has no relevance or evidentiary value. For the purpose of levying stamp duty, the procedure for valuation is provided under the Kerala Stamp Act. Such a valuation report can certainly be used in proceedings in court. 10. 10.93 Ares equivalent to 27 cents along with a building having an area of 8612 sq.m. is item number 3 property. Building was valued at Rs.1,36,84,439/-. The value 7 O.P.(FC) No.535 of 2022 of the land is shown as Rs.1,08,00,000/-. The other four items in the schedule also appeared valuable properties. When the claim of the petitioner is Rs.62,87,200/-, prima facie, it can be said that item Nos.1 to 5 properties are sufficient to satisfy that claim, even if the claim is allowed in toto. ## 11. In **Smitha v. P.C.Varghese and another [2016** ## **(2) KHC 793]** , this Court held,- “17. Necessarily on furnishing the required security, an order of attachment is possibly be lifted. Under the said provision, the court is not empowered to determine the extent of the property required to be kept under attachment or the security required to be furnished in lieu thereof. The provision only says that the court has the power to lift the attachment when the required security is furnished. It is in respect of the property conditionally attached that the security is required to be furnished. The security can either be the property under attachment or anything having equivalent value thereof. Therefore, the extent of the property required to meet the plaint claim is something to be decided by the court prior to the passing of the conditional attachment of the property and it is in respect of that extent that the court is empowered to pass an order under Rule 5 of Order XXXVIII of the Code.” 8 O.P.(FC) No.535 of 2022 12. What is intended by an attachment before judgment is to ensure satisfaction of the petitioners’ claim, if a decree is passed. The petitioner cannot go behind all the properties belonging to the respondents, unconcerned of what much of properties are required to satisfy the decree that may be passed in the case. The claim of the petitioner to keep all the properties belonging to the opposite side under attachment, till the culmination of the proceedings; even though a part of such properties is enough to satisfy his claim, is an act of oppression and cannot be appreciated. Therefore, we are of the view that the Family Court had rightly allowed I.A.No.3 of 2022. 13. That apart, right of the parties, other than the respondents herein, is also involved. Other legal representatives of the 3[rd] respondent’s father have right in item Nos.6 and 7 properties. Order XXXVIII, Rule 10 of the Code of Civil Procedure, 1908 reads,- “10. Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree 9 O.P.(FC) No.535 of 2022 against the defendant from applying for the sale of the property under attachment in execution of such decree.” 14. In **Hamda Ammal v. Avadiappa Pathar and others [(1991) 1 SCC 715]** the Apex Court held that the provision in Order XXXVIII, Rule 10 of the Code makes it clear that attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit. For that reason also attachment in respect of whole of item Nos.6 and 7 properties is unsustainable and liable to be set aside. Accordingly, we hold that the challenge to Ext.P6 order is untenable. The Original Petition is therefore dismissed. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 10 O.P.(FC) No.535 of 2022 ## **APPENDIX OF OP (FC) 535/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 A TRUE COPY OF O.P.NO.381/2022 ON THE FILES OF FAMILY COURT, MALAPPURAM DATED 4-4-2022** - **EXHIBIT P2 A TRUE COPY OF I.A.NO.2/2022 IN O.P.NO.381/2022 FILED BEFORE THE FAMILY COURT, MALAPPURAM DATED 16-42022** - **EXHIBIT P3 A TRUE COPY OF I.A.NO.3/2022 FILED BY THE RESPONDENTS ON 9-5-2022** - **EXHIBIT P4 A TRUE COPY OF THE VALUATION CERTIFICATE ISSUED BY THE BUILDING ENGINEER** - **EXHIBIT P5 A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONERS TO EXHIBIT P3 I.A. IN THE MONTH OF MAY, 2022** - **EXHIBIT P6 A TRUE COPY OF THE COMMON ORDER IN I.A.NO.2/2022, I.A.NO.3/2022, I.A.NO.4/2022 AND I.A.NO.7/2022 IN O.P.NO.381/2022 OF THE FAMILY COURT, MALAPPURAM DATED, 15-6-2022.**