O.P.(FC) Nos.71 and 110 of 2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G.AJITHKUMAR ``` ``` MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 ``` ``` O.P.(FC)NO.71 OF 2023 ``` ``` AGAINST THE ORDER DATED 31.12.2022 IN E.P.NO.36 OF 2021 IN O.P.NO.36 OF 2010 ON THE FILE OF THE FAMILY COURT, ``` ``` THIRUVALLA ``` ``` PETITIONER/2[ND] JUDGMENT DEBTOR/2[ND] RESPONDENT: ``` ``` PARAMESWARAN NAIR, AGED 82 YEARS, S/O RAMAN NAIR, SURESH BHAVAN, EAST OTHERA P.O.,THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689546 ``` ``` BY ADVS. P.VINODKUMAR PARVATHI VENUGOPAL HARITHA HARIDAS ``` ## **`RESPONDENTS/DECREE HOLDER/PETITIONER & JUDGMENT DEBTOR 1`** ``` &3 IN E.P. AND RESPONDENTS 1 &3 IN O.P.: ``` - **`1 ASHALATHA S., AGED 51 YEARS, W/O M.P.SURESH KUMAR,KALINTETH HOUSE,ARANMULA P.O.,ARANMULA VILLAGE,KOZHENCHERY,PATHANAMTHITTA, PIN - 689533`** - **`2 SURESH KUMAR, AGED 58 YEARS, S/O PARAMESWARAN NAIR, SURESH BHAVAN,EAST OTHERA P.O.,THIRUVALLA, PATHANAMTHITTA, PIN - 689546`** 2 O.P.(FC)Nos.71 and 110 of 2023 - **`3 SANTHAMMA,`** ``` AGED 78 YEARS, W/O PARAMESWARAN NAIR, SURESH BHAVAN, EAST OTHERA P.O.,THIRUVALLA,PATHANAMTHITTA, PIN - 689546 ``` ``` BY ADV K.N.RADHAKRISHNAN (THIRUVALLA) ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10.04.2023, ALONG WITH OP (FC).110/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 O.P.(FC)Nos.71 and 110 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN ``` ## **`&`** ## **`THE HONOURABLE MR.JUSTICE P.G.AJITHKUMAR`** ``` MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 O.P.(FC)NO.110OF 2023 ``` ``` AGAINST THE ORDER DATED 31.12.2022 IN E.P.NO.36 OF 2021 IN O.P.NO.36 OF 2010 ON THE FILE OF THE FAMILY COURT, ``` ## **`THIRUVALLA`** ## **`PETITIONER/1[ST] JUDGMENT DEBTOR IN E.P./1[ST] RESPONDENT IN`** ``` O.P.: ``` ``` SURESH KUMAR M.P., AGED 57 YEARS, S/O PARAMESWARAN NAIR, RESIDING AT SURESH BHAVAN, OTHERA P.O., THIRUVALLA, PATHANAMTHITTA DIST, PIN - 689546 ``` ``` BY ADV K.T.SIDHIQ ``` ## **`RESPONDENTS/DECREE HOLDER/PETITIONER IN O.P. & JUDGMENT`** ``` DEBTOR 2 &3 IN E.P. AND RESPONDENTS 2 &3 IN O.P.: ``` - **`1 ASHALATHA S., AGED 52 YEARS, W/O SURESH KUMAR, RESIDING AT KALLINETH HOUSE, ARANMULA P.O., PATHANAMTHITTA DIST, PIN - 689533`** ``` 2 PARAMESWARAN NAIR, AGED 82 YEARS, S/O RAMAN NAIR, RESIDING AT SURESH BHAVAN, OTHERA P.O., THIRUVALLA, PATHANAMTHITTA DIST., PIN - 689546 ``` 4 O.P.(FC)Nos.71 and 110 of 2023 ``` 3 SANTHAMMA, AGED 72 YEARS, W/O PARAMESWARAN NAIR, RESIDING AT SURESH BHAVAN, OTHERA P.O., THIRUVALLA, PATHANAMTHITTA DIST., PIN - 689546 ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10.04.2023, ALONG WITH OP (FC).71/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 O.P.(FC)Nos.71 and 110 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The common challenge made in these original petitions are against the order dated 31.12.2022 of the Family Court, Thiruvalla in E.P.No.36 of 2021 in O.P.No.36 of 2010. 2. O.P.(FC)No.71 of 2023:- This original petition is one filed by the 2[nd] judgment debtor in E.P.No.36 of 2021 in O.P.No.36 of 2010 on the file of the Family Court, Thiruvalla, which is one filed by the 1[st] respondent herein-decree holder, who is the daughter-in-law of the petitioner herein-2[nd] judgment debtor. By Ext.P6 order dated 31.12.2022, the Family Court, allowed the petition filed by the decree holder under Order XXI Rule 10 and 11 of the Code of Civil procedure, 1908 for execution of the decree dated 25.05.2012 in O.P.No.36 of 2010, which stands confirmed by this Court in the judgment dated 25.01.2020 in Mat. Appeal No.551 of 2012, whereby the decree holder was allowed to realise an amount of Rs.2,25,000/- as patrimony from the judgment debtors (the petitioner herein and his son) and their assets with interest at the rate of 6% therein from the date of petition till realisation and also an amount of Rs.1,30,000/- as past maintenance for 6 O.P.(FC)Nos.71 and 110 of 2023 17 months from the 1[st] judgment debtor-husband. 2.1. Before the Family Court, Ext.A1 was marked on the side of the decree holder and she was examined as PW1. On the side of the judgment debtors, Exts.B1 to B19 were marked and the 1[st] judgment debtor, i.e., the husband of the decree holder, was examined as DW1. The documents placed on record are mainly medical records, in order to show that the petitioner herein-the 2[nd] judgment debtor is having various ailments. After considering the rival contentions, the execution court issued warrant of arrest against the judgment debtors, by Ext.P6 order dated 31.12.2022 in E.P.No.36 of 2021 in O.P.No.36 of 2010, on a finding that the means of the judgment debtors stands proved. Feeling aggrieved, the petitioner herein-the 2[nd] judgment debtor filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, seeking an order to set aside Ext.P6 order dated 31.12.2022 in E.P.No.36 of 2021 in O.P.No.36 of 2010, to the extent an arrest warrant is issued against him. 2.2. On 08.02.2023, when this original petition came up for admission, this Court issued notice on admission to the 7 O.P.(FC)Nos.71 and 110 of 2023 respondents by speed post, returnable within three weeks. By the order dated 08.02.2023, execution of the arrest warrant against the petitioner, who is the 2[nd] judgment debtor, alone was stayed for a period of one month. The said interim order was extended for a period of one month on 10.03.2023. 3. O.P.No.110 of 2023:- During the pendency of O.P.(FC)No.71 of 2023 filed by the 2[nd] judgment debtor, the 1[st] judgment debtor-son of the 2[nd] judgment debtor has filed this original petition, challenging the very same order dated 31.12.2022 of the Family Court, Thiruvalla in E.P.No.36 of 2021 in O.P.No.36 of 2010, which is marked as Ext.P7. The petitioner has also sought for an order directing the Family Court to pass orders in Ext.P4 application, i.e., EA.No.72 of 2022 in E.P.No.36 of 2021 in O.P.No.36 of 2010. 3.1. On 21.03.2023, when this original petition came up for admission, this Court issued notice on admission to the respondents by speed post, returnable within three weeks. This Court granted an interim stay of the execution arrest warrant against the petitioner herein-1[st] judgment debtor, on condition that he shall deposit a sum of Rs.1,00,000/- before the Family Court, Thiruvalla, within a period of two weeks and a further 8 O.P.(FC)Nos.71 and 110 of 2023 sum of Rs.50,000/- within a further period of one week. 3.2. On 22.03.2023, when this original petition came up for consideration, the 1[st] respondent-decree holder entered appearance through counsel. 4. Heard the learned counsel for the petitioner in the respective original petitions and also the learned counsel for the 1[st] respondent-decree holder. 5. The issue that arises for consideration in these original petitions is as to whether any interference is warranted, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, on the order dated 31.12.2022 of the Family Court in E.P.No.36 of 2021 in O.P.No.36 of 2010, whereby warrant of arrest has been issued against the petitioner in the respective original petitions, i.e., judgment debtors 1 and 2. 6. After arguing for some time, the learned counsel for the petitioner in the respective original petitions would submit that, in case this Court finds no grounds to interfere with the order dated 31.12.2022 of the Family Court in E.P.No.36 of 2021 in O.P.No.36 of 2010, in the exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, the 9 O.P.(FC)Nos.71 and 110 of 2023 petitioner in O.P.(FC)No.110 of 2023, who is the 1[st] judgment debtor in E.P.No.36 of 2021 in O.P.No.36 of 2010, may be granted ten months’ time to clear the entire decree debt in monthly installments. 7. Per contra, the learned counsel for the 1[st] respondent-decree holder would submit that the reasoning of the Family Court in the impugned order dated 31.12.2022 of the Family Court in E.P.No.36 of 2021 in O.P.No.36 of 2010 is neither perverse nor patently illegal, warranting interference under Article 227 of the Constitution of India. 8. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 9. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to 10 O.P.(FC)Nos.71 and 110 of 2023 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. ## 10. 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 quasi-judicial 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 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 11 O.P.(FC)Nos.71 and 110 of 2023 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. 11. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in the exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. 12. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016** **(1) KHC 1]** a Division Bench of this Court held that the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution 12 O.P.(FC)Nos.71 and 110 of 2023 is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 13. In view of the law laid down in the decisions referred to supra, the High Court in the exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of 13 O.P.(FC)Nos.71 and 110 of 2023 law or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. 14. In the instant case, after considering the pleadings and evidence on record, the Family Court arrived at a conclusion that the petitioner in the respective original petitions, i.e., the 1[st] and 2[nd] judgment debtors have the capacity and means to pay the decree debt to the 1[st] respondent herein-decree holder. The fact that the 1[st] judgment debtor has been working abroad for a considerably long period and that, the 2[nd] judgment debtor is conducting stationery and provision store at an important locality for the last more than 40 years, is not in serious dispute. The reasoning of the Family Court, as contained in paragraphs 8 to 11 of the order dated 31.12.2022 in E.P.No.36 of 2021 in O.P.No.36 of 2010 is neither perverse nor patently illegal. It cannot also be said that, while passing such an order, the Family Court committed any material irregularity. In the exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, this Court is not sitting in appeal over the order dated 31.12.2022 passed by the Family Court. 14 O.P.(FC)Nos.71 and 110 of 2023 15. Going by the provisions under Order XXI, Rule 30 of the Code of Civil Procedure, 1908, the statutory mandate is that every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both. As per Order XXI, Rule 21 of the Code, the court may, in its discretion, refuse execution at the same time against the person and property of the judgment-debtor. 16. As held by a Division Bench of this Court in **Shiram Transport Finance Company v. Noufal T.P. [2016 (4) KHC 403]** , on a combined reading of Order XXI, Rule 30 and Rule 21 of the Code of Civil Procedure, in juxtaposition, it is well discernible that the Execution Court is vested with discretion to execute the decree alternatively by proceeding against the person or his property or by both. 17. In the above circumstances, the challenge made in these original petitions against the order dated 31.12.2022 of the Family Court, Thiruvalla in E.P.No.36 of 2021 in O.P.No.36 of 2010 fails. The petitioner in O.P.(FC)No.110 of 2023 is not entitled to consideration of Ext.P4 application, i.e., EA.No.72 of 15 O.P.(FC)Nos.71 and 110 of 2023 2022 in E.P.No.36 of 2021 in O.P.No.36 of 2010. 18. In the result, both the original petitions fail and they are accordingly dismissed. 19. The learned counsel for the 1[st] respondent-decree holder would fairly submit that a reasonable time of three months can be granted to the judgment debtors for paying the entire decree debt. 20. In such circumstances, though interference is declined on the impugned orders, the petitioners in the respective original petitions, who are the judgment debtors E.P.No.36 of 2021 in O.P.No.36 of 2010, are permitted to pay the balance decree debt, together with interest, in three equal monthly installments commencing from 26.04.2023 and the balance two installments payable on or before 26[th] day of the succeeding months. 21. In case of any default on the part of the judgment debtors in remitting any one of the aforesaid installments, the Family Court shall proceed further with the warrant of arrest issued against them, in the order dated 31.12.2022 in E.P.No.36 of 2021 in O.P.No.36 of 2010. On the other hand, in case the judgment debtors are remitting the aforesaid 16 O.P.(FC)Nos.71 and 110 of 2023 installments in time, the Family Court shall keep in abeyance the execution of the warrant of arrest issued against them, so as to enable them to clear the entire decree debt, together with interest, in three installments, within the aforesaid time limit. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** MIN 17 O.P.(FC)Nos.71 and 110 of 2023 ## **`APPENDIX OF OP (FC) 71/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 TRUE COPY OF O.P.36/2010 DATED 14.01.2010 FILED BEFORE THE FAMILY COURT, THIRUVALLA ``` ``` Exhibit P2 TRUE COPY OF THE EP 36/2021 IN O.P.36/2010 DATED 19.11.2021 FILED BEFORE THE FAMILY COURT,THIRUVALLA ``` ``` Exhibit P3 ``` ``` TRUE COPY OF THE OBJECTION IN E.P.36/2021 IN O.P.36/2010 DATED 20.12.2021 ``` ``` Exhibit P4 TRUE COPY OF THE NOTICE ISSUED UNDER O21 R37 DATED 27.06.2022 BY THE FAMILY COURT, THIRUVALLA ``` ``` Exhibit P5 TRUE COPY OF THE OBJECTION DATED 07.07.2022 FILED BEFORE THE FAMILY COURT, THIRUVALLA ``` ``` Exhibit P6 CERTIFIED COPY OF THE JUDGMENT DATED 31/12/2022 OF THE FAMILY COURT,THIRUVALLA ``` 18 O.P.(FC)Nos.71 and 110 of 2023 ## **`APPENDIX OF OP (FC) 110/2023`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1 TRUE COPY OF THE JUDGEMENT IN O.P.36/2010 DATED 24/5/2012 PASSED BY THE FAMILY COURT, THIRUVALLA`** ``` Exhibit P2 TRUE COPY OF THE E.P.36/2021 IN O.P.36/2010 DATED 19/11/2021 ``` - **`Exhibit P3 TRUE COPY OF THE OBJECTION DATED 20/12/2021 IN E.P.36/2021`** - **`ExhibitP4 TRUE COPY OF THE PETITION E.A.72/2022 IN E.P.36/2021 DATED 22/1/2022`** ``` Exhibit P5 TRUE COPY OF THE AFFIDAVIT IN E.P.36/2021 FILED BY THE PETITIONER FOR ISSUANCE OF WARRANT DATED 30/5/2022 ``` - **`Exhibit P6 TRUE COPY OF THE OBJECTION FILED IN E.P.36/2021 AGAINST ISSUANCE OF WARRANT DATED 7/7/2022`** ``` Exhibit P7 TRUE COPY OF THE ORDER DATED 31/12/2022 PASSED BY THE FAMILY COURT,THIRUVALLA IN E.P.36/2021 IN O.P.36/2010 ```