Prameela K. Babu v. Boji Vas u 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 TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA,** **1944** **OP (FC) NO. 321 OF 2022 AGAINST THE ORDER/JUDGMENT IN OP 289/2020 OF FAMILY** **COURT, ALAPPUZHA** ## **PETITIONER/S:** PRAMEELA.K.BABU AGED 40 YEARS D/O SIVAPRASAD, ANJANAM, KODUPUNNA.P.O., RAMANKARY, EDATHUA VILLAGE, ALAPPUZHA DISTRICT , PIN - 689585 BY ADV R.UMASANKAR ## **RESPONDENT/S:** 1 BOJI VASU AGED 49 YEARS S/O VASU, ERUPATHIMOONNILCHIRA, KODUPUNNA.P.O., RAMANKARY, ALAPPUZHA DISTRICT , PIN - 689585 2 SARADA VASU AGED 77 YEARS W/O VASU, SARADAMANDIRAM, KODUPUNNA.P.O., RAMANKARY, NOW RESIDING AT CHAKKALAYIL VEEDU, H.NO.279, SANTHI NAGAR RESIDENT ASSOCIATION, VALIYAKULAM, KURISUMMOOD.P.O, CHANGANACHERY, KOTTAYAM 2 O.P.(FC) No.321 of 2022 DISTRICT , PIN - 686101 3 JOJI VASU AGED 42 YEARS S/O VASU, SARADAMANDIRAM, KODUPUNNA.P.O., RAMANKARY, NOW RESIDING AT CHAKKALAYIL VEEDU, H.NO.279, SANTHI NAGAR RESIDENT ASSOCIATION, VALIYAKULAM, KURISUMMOOD.P.O, CHANGANACHERY, KOTTAYAM DISTRICT , PIN - 686101 4 DIVYA VASU AGED 41 YEARS W/O JOJI VASU, SARADAMANDIRAM, KODUPUNNA.P.O., RAMANKARY, NOW RESIDING AT CHAKKALAYIL VEEDU, H.NO.279, SANTHI NAGAR RESIDENT ASSOCIATION, VALIYAKULAM, KURISUMMOOD.P.O, CHANGANACHERY, KOTTAYAM DISTRICT , PIN - 686101 BY ADVS. V.VIJULAL R.T.PRADEEP M.BINDUDAS(K/523/2010) K.C.HARISH(K/000788/2017) THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 O.P.(FC) No.321 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The petitioner has filed O.P.No.289 of 2020 before the Family Court, Alappuzha seeking recovery of gold ornaments and money said to have been given at the time of her marriage. She also filed I.A.No.1 of 2020 for attachment before judgment of two items of property. A conditional attachment was ordered. The respondents filed I.A.No.3 of 2020 for lifting attachment over the second item property. The Family Court as per Ext.P4 confined the attachment to item No.1 property and lifted the attachment over item No.2. 2. The petitioner filed I.A.No.8 of 2022 to set aside the commission report obtained regarding valuation of item No.1 property and also I.A.No.9 of 2022 to appoint a new commission. The Family Court dismissed both those petitions as per Ext.P7. The petitioner therefore has filed this Original Petition under Article 227 of the Constitution of India, seeking to set aside both Exts.P4 and P7 (an unauthenticated copy of Ext.P7 was initially produced, which is Ext.P6). 4 O.P.(FC) No.321 of 2022 3. On 13.06.2022, notice on admission was issued to the respondents. An interim order restraining the respondents from alienating or transferring item No.2 property in I.A.No.1 of 2020 in O.P.No.289 of 2020 was granted. 4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 5. Ext.P1 is a copy of O.P.No.289 of 2020. The contentions are that at the time of marriage, the petitioner was given 99 sovereigns of gold ornaments, Rs.5,10,000/- and other articles. On later occasions also, a few articles were given. Alleging that all such gold, money and articles were misappropriated by the respondents, the petitioner has filed O.P.No.289 of 2020 for realisation of Rs.36,27,000/- towards the cost of gold ornaments, Rs.10,00,000/money paid in cash and Rs.1,65,000/- towards the cost of articles given. The petitioner also has filed I.A.No.1 of 2020 for attachment of two items of property belonging to the respondents in order to secure realisation of amount that would be due under the decree that may be passed in the O.P, which may come to Rs.47,92,000/-. 5 ## O.P.(FC) No.321 of 2022 Initially, the Family Court ordered attachment of both items of property. Although the respondents filed I.A.No.3 of 2020 seeking to confine the attachment to item No.1, by contending that the said property alone fetches a price of Rs.1 crore, the Family Court did not initially allow that prayer. The order of the Family Court in that regard was challenged by the respondents by filing O.P.(FC) No.13 of 2022. That Original Petition was allowed by this Court as per the judgment dated 07.02.2022 and the Family Court was directed to reconsider the application filed by the respondents herein for lifting the attachment along with the objection raised against the conditional attachment. 6. In obedience to the said direction, the Family Court considered the matter afresh. A commission application regarding valuation of item No.1 property was obtained. The Advocate Commissioner with the assistance of an Expert Engineer filed a commission report. Item No.1 property was valued at Rs.51,45,618/-. Accepting the said valuation, the Family Court as per Ext.P4 order confined the attachment to item No.1 alone. By allowing I.A.No.3 of 2020 attachment in 6 O.P.(FC) No.321 of 2022 respect of item No.2 property was withdrawn. 7. The petitioner had in the meantime filed I.A.Nos.8 and 9 of 2022 seeking to set aside the commission report and also to appoint a new commissioner for valuation of the property in a proper way. The contentions were that the valuation of the building made by the Expert Engineer was totally incorrect. It was pointed out that the building, which was constructed in the year 2013, would not fetch a value as quantified by the Expert Engineer. Necessary depreciation was also not taken into account by the Expert. Accordingly, the petitioner maintains that the value of the building in item No.1 property would not be more than Rs. 18,13,844/- and therefore the attachment of item No.2 property could not be withdrawn. Further, the petitioner requested to appoint a new commissioner for a proper valuation of the said property. Ext.P7 is the common order passed by the Family Court in I.A.Nos.8 and 9 of 2022. The Family Court held that no serious infirmity could be found in the report of the commissioner or the expert, and therefore, there was no reason to set aside the report and to appoint a new 7 O.P.(FC) No.321 of 2022 commission. 8. The learned counsel appearing for the petitioner would submit that considering the nature of the land, which is a marshy one, its valuation made by the Commissioner is totally incorrect. It is further contended that the Expert Engineer did not take into account the parameters laid by the P.W.D. for valuation of the building and did not apply the required depreciation. Therefore, the valuation of the land made by the Commissioner is much on the higher side. In such circumstances, item No.2 property should also be held under attachment in order to ensure that the petitioner would not be in a position to realise the amount that would be due as per the decree, which may be passed in O.P.No.289 of 2020. 9. The learned counsel appearing for the respondents, on the other hand, would submit that item No.1 property having an extent of 35.5 cents along with the building, which is comparatively a new one would worth more than Rs.one crore. It is further contended that there is no pleadings in the original petition that the property of the petitioner was misappropriated by respondents 3 and 4, and therefore there is absolutely no 8 O.P.(FC) No.321 of 2022 reason or rhyme to attach item No.2 property, which belongs to them. 10. The matter involved is a claim for attachment before judgment. Such a remedy is an extraordinary one and on placing sufficient materials so as to convince the court that there is a strong prima facie case, one can get an attachment of a property before the judgment. Here, the claim of the petitioner is that the gold ornaments, articles and money given at the time of her marriage and various other occasions were misappropriated by the husband and his relatives. Of course, contention of the petitioner that the gold ornaments, other articles and money were misappropriated by her husband, the 1[st] respondent can be acted upon to a great extent even without any document while considering a plea for attachment before judgment. The 3[rd] respondent is the brother of the 1[st] respondent and the 4[th] respondent is his wife. Other than the allegations in the original petition, there is no material to show that respondent Nos.3 and 4 had any connection with receipt of gold ornaments, other articles and money said to have been 9 O.P.(FC) No.321 of 2022 given to the petitioner at the time of her marriage. 11. That apart, the claim of the petitioner in the Original Petition is Rs.47,92,000/-. 35.5 cents of land of item No.1 is valued at Rs.21,80,618/-. Value per cent was assessed as Rs.61,425/-. The said valuation is on the basis of the certification by the Tahsildar. The building thereon was constructed in the year 2013. The Engineer quantified its value at the rate of Rs.1,547/- per sq.ft. The contention of the petitioner is that the cost should not have been taken more than Rs.1,100/- per sq.ft. The petitioner, however, does not explain what is the basis of the value she has suggested. When the expert, who is a retired P.W.D. Engineer quantified the value at such a rate, we do not find any reason to discard it while considering a plea for attachment before judgment. 12. Accordingly, we hold that the view taken by the Family Court that there was no reason to set aside the report of the commissioner and the expert cannot be found fault with. While the claim of the petitioner in the O.P is Rs. 47,92,000/the item No.1 property was valued at Rs.51,45,618/-. The said 10 ## O.P.(FC) No.321 of 2022 property ordinarily would be sufficient to satisfy the claim in the original petition. Therefore, the contention of the petitioner that item No.2 property, which does not belong to the 1[st] respondent also has to be held under attachment, is devoid of any merit. The Family Court rightly had allowed I.A.No.3 of 2020. 13. 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 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 Constitution of 11 ## O.P.(FC) No.321 of 2022 India. It is, however, good 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. 14. 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) No.321 of 2022 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. 15. As held in the aforesaid decisions, this Court is not expected to interfere with the findings on facts in the impugned order, unless there is manifest error in it. In the facts and circumstances of the case, we hold that there is no reason to interfere with the impugned order by this Court invoking the supervisory jurisdiction under Article 227 of the Constitution of India. The Original Petition is therefore dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 13 O.P.(FC) No.321 of 2022 ## **APPENDIX OF OP (FC) 321/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF O.P. NO.289/2020 FILED BEFORE THE FAMILY COURT, ALAPPUZHA Exhibit P2 TRUE COPY OF THE ORDER DATED 07.02.2022 IN OP(FC) NO. 13/2022 OF THIS HON'BLE COURT Exhibit P3 TRUE COPY OF THE COMMISSION REPORT DATED 21.04.2022 Exhibit P4 COPY OF THE COMMON ORDER DATED 20.05.2022 IN I.A. NO.1/2020 AND I.A NO.3/2020 IN OP. NO. 289/2020 OF THE HON'BLE FAMILY COURT, ALAPPUZHA Exhibit P5 COPY OF THE I.A. NO.8/2022 IN OP. NO. 289/2020 OF THE HON'BLE FAMILY COURT, ALAPPUZHA Exhibit P5 (a) COPY OF THE I.A NO.9/2022 IN OP. NO. 289/2020 OF THE HON'BLE FAMILY COURT, ALAPPUZHA Exhibit P6 COPY OF THE EXTRACT OF THE ORDER DATED 20.05.2022 RESPONDENT EXHIBITS Exhibit-R4(a) True copy of I.A. No.1/2020 seeking attachment of petition schedule properties 1 and 2 dated 26.5.2020 Exhibit-R4(b) True copy of conditional order of attachment dated 2.6.2020 in I.A. No.1/2020 in O.P. No.289/2020 by Family Court, Thiruvananthapuram Exhibit-R4(c) True copy of I.A. No.3/2020 dated 14 ## O.P.(FC) No.321 of 2022 10.6.2020 seeking to lift the conditional attachment pertaining to petition schedule item No.2 property Exhibit-R4(d) True copy of common order dated 17.9.2021 in I.A. Nos.1/2020 and 3/2020 in O.P. No.289/2020 by Family Court, Alappuzha Exhibit-R4(e) True copy of valuation certificate of plaint schedule Item No.1 property dated 4.5.2022 by Tahsildar, Kuttanad PETITIONER EXHIBITS Exhibit P7 TRUE COPY OF THE ORDER DATED 20.05.2022 OF THE HON'BLE FAMILY COURT, ALAPPUZHA IN I.A NO 8/2022 IN OP 289/2020