Sulina v. Shiju K.T.K. and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY, THE 05TH DAY OF SEPTEMBER 2019 / 14TH BHADRA, 1941** ## **OP (FC).No.525 OF 2015(R)** **AGAINST THE ORDER DATED 14-09-2015 IN E.P.NO.3/2014 IN OP 345/2012 OF FAMILY COURT, VADAKARA** ## **PETITIONER :** **SULINA, AGED 32 YEARS, D/O.LATE SURENDRAN, PANNITHADATHIL, THEJAS HOUSE, P.O.ORKKATTERI, VATAKARA TALUK, KOZHIKODE DISTRICT** **BY ADVS. SRI.C.VATHSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V** ## **RESPONDENTS/ RESPONDENTS :** **1 SHIJU K.T.K., AGED 33 YEARS, S/O.SREEDHARAN, KANNOTH TAHZHA KUNIYIL HOUSE, P.O.EDACHERY (VIA), VATAKARA, KOZHIKODE DISTRICT, PIN - 673 502** **2 SREEDHARN, AGED 58 YEARS, S/O.NOT KNOWN, KANNOTH THAZHA KUNIYIL HOUSE, P.O.EDACHERY (VIA), VATAKARA, KOZHIKODE DISTRICT, PIN - 673 502** **3 SAVITHRI, AGED 48 YEARS, W/O.SREEDHARAN, KANNOTH THAZHA KUNIYIL HOUSE, P.O.EDACHERY (VIA), VATAKARA, KOZHIKODE DISTRICT, PIN - 673 502** **OP (FC).No.525 OF 2015(R)** 2 **4 SHEEBA, AGED 28 YEARS,** **W/O.PURUSHOTHAMAN, KANNOTH THAZHA KUNIYIL HOUSE, P.O.EDACHERY (VIA), VATAKARA, KOZHIKODE DISTRICT, PIN - 673 502** **R1 BY ADVS. SRI.ABRAHAM P.GEORGE SRI.C.BHASKARAN SMT.M.SANTHY SRI.K.VINODKUMAR 70789** **R2-R4 BY ADV.SRI.ABRAHAM.P.GEORGE** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 09-07-2019, THE COURT ON 05-09-2019 PASSED THE FOLLOWING :** **OP (FC).No.525 OF 2015(R)** 3 ## JUDGMENT ## Annie John,J. The petitioner is the petitioner in E.P. No. 3 of 2014 in O.P. No. 345 of 2012 on the files of the Family Court, Vatakala. The said OP was filed by the petitioner claiming a sum of Rs.5,18,185/- towards the value of gold ornaments and cash taken by respondents, who are husband, father, mother and sister. The Family Court, as per judgment dated 23.09.2013, allowed the OP directing the respondents to return 20 ½ sovereigns of gold ornaments or to pay a sum of Rs. 4,83,185/- and a sum of Rs.35,000/- to the petitioner within two months from the date of judgment. Aggrieved by the same, the respondents have preferred Mat. Appeal No. 801 of 2013. In the said appeal, this Court, as per order dated **OP (FC).No.525 OF 2015(R)** 4 12.08.2014, directed the respondents to deposit Rs.2,50,000/- within two months. Since the amount was not deposited, E.P No. 3 of 2014 was filed by the petitioner for recovery of the amount. In that EP, the property of the 3rd respondent to an extent of 3 ½ cents with a house is attached for sale. The respondents filed counter to the said EP stating that the property cannot be attached as the 3rd respondent, who is a domestic servant, is entitled for protection under Section 60(c) of the CPC. The Family Court, Vatakara, as per order dated 14.09.2015 in Ext.P3 order, dismissed the EP holding that the third respondent to whom the property belongs, is found entitled for benefits of Section 60(c) of CPC. Aggrieved by the same, this Original Petition has been filed. **OP (FC).No.525 OF 2015(R)** 5 2. The learned counsel for the petitioner contends that the court below ought to have allowed the EP so as to sell the property of the 3rd respondent for realisation of the amount due as per the decree in OP No. 345 of 2012. He has also contended that the claim of the 3rd respondent that she is a domestic servant is not supported by any evidence. The 3rd respondent examined as RW2, who is alleged to be the master under whom she was working as a domestic servant. The evidence of RW2 is supported by the evidence of RW1. The main argument advanced by the learned counsel for the petitioner is that the claim put forward by the third respondent will not stand. In fact, OP was filed for return of 21 ½ sovereigns of of gold ornaments or to pay its value to the tune of Rs.4,83,185/- and that OP was **OP (FC).No.525 OF 2015(R)** 6 decreed in favour of the petitioner. Thereafter, the petitioner has initiated execution proceedings and that too against the property belongs to the third respondent, the mother of the first respondent. In the EP, the third respondent has raised a contention that she is entitled to get protection under Section 60(c) of CPC and she requests for the dismissal of the EP on the premise that she is a domestic servant of the property mentioned in the EP. The property under attachment is 3/12 cents, in which there is a house, where the third respondent and her family are residing. According to her, the property belongs to her is not liable to be attached and sold. The evidence was taken by examining RWs 1 and 2 and Ext.B1 was marked. RW1 is the third respondent and she has given evidence to the effect that she is a maid servant of **OP (FC).No.525 OF 2015(R)** 7 RW2 working in his house for the last 20 years. She is suffering from disk prolapse and she is unable to go for hard work. Further, she has taken a contention that her two sons are suffering from allergic problems. He husband was a mason by profession. In fact, her family is surviving on her income which derives from her job as a domestic servant of RW2. RW2 has deposed that he was working abroad. Thereafter, he came back and settled in Kozhikode. His wife is deaf and dumb person and his mother is an aged person. RW1 is a maid servant to attend external jobs such as cleaning the courtyard and the house and wash the clothes for the past 20 years and she has been paid sum of Rs.150/- per day. The learned counsel for the petitioner has strenuously argued that the intention of RW2 is only to protract the entire proceedings **OP (FC).No.525 OF 2015(R)** 8 and to deny the payment of the amount which is decreed in favour of the petitioner. 3. Now the question which arises for consideration is whether the 3rd respondent is entitled to get protection under Section 60(c) of CPC. Section 60(c) reads thus: “60. Property liable to attachment and sale in execution of decree.—(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to [an agriculturist or a labourer or a domestic servant] and occupied by him;” 4. On a reading of Section 60 CPC, it is categoric and clear that all properties are liable to attachment and sale in execution of a decree except the **OP (FC).No.525 OF 2015(R)** 9 properties mentioned under the proviso thereto which includes subsection (c) of Section 60. On a reading of the proviso, it is categoric and clear that certain properties are carved out from the main proviso in order to protect them from being attached and sold. Such an exception is carved out with a bona fide object of protecting the basic requirements that are necessary for the existence and livelihood of the party to the litigation. So in such cases, the court while considering the claim made under the proviso to Section 60 CPC, should be more cautious enough to evaluate the evidence as intended by the parliament under the said provision. In such circumstances, every court shall have the duty to uphold the exceptions carved out under the main provision and thereby protect the object of the law maker. **OP (FC).No.525 OF 2015(R)** 10 5. So, on perusal of the documents as well as the pleadings and arguments and by appreciating the rival contentions advanced by the parties, we have got a considered opinion that the subject matter in this case as to whether the petitioner is entitled to get protection of properties by invoking Section 60 (c) CPC was properly considered by the court below taking into account the evidence available before it. 6. This fact has been considered in detail by this Court in Padmavathy Karipparambil v. Sreeja Makkulam Veettil [2016 (1) KLT 560] . The matter in issue in the above said case was that the Family Court has dismissed the application without considering the implications contained in Section 60(c) of the CPC wherein the court has held that the court must take this **OP (FC).No.525 OF 2015(R)** 11 kind of matter in a very cautious way and decide accordingly. 7. Here, RW1 has given evidence that she is only a domestic servant and the property is having only 3 ½ cents in which a house is also situated. According to the third respondent, the house and the land immediately appurtenant thereto is necessary for her enjoyment and therefore, the same cannot be attached for sale. RW2 has also given evidence to the effect that RW1 is a domestic servant. Therefore, her claim will definitely come under Section 60(c) of the CPC. The Execution Court has considered this fact and ultimately dismissed the application. We do not find any ground to interfere with the order of the court below and the same is only to be confirmed. **OP (FC).No.525 OF 2015(R)** 12 Accordingly, this OP(FC) is dismissed. Sd/K. HARILAL, JUDGE. Sd/ANNIE JOHN, JUDGE RKM **OP (FC).No.525 OF 2015(R)** 13 ## **APPENDIX OF OP (FC) 525/2015** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**P1:TRUE COPY OF THE JUDGMENT DATED**| |---|---| ||**23.09.2013 IN OP.345/2012 OF THE FAMILY**| ||**COURT, VADAKARA**| |**EXHIBIT P2**|**P2:TRUE COPY OF THE INTERM ORDER DATED**| ||**12.08.2014 IN MAT. APPEAL NO.801/2013**| ||**OF THIS HON'BLE COURT**| |**EXHIBIT P3**|**P3:TRUE COPY OF THE ORDER DATED**| ||**14.09.2015 IN EP.NO.3/2014 IN**| ||**OP.NO.345/2012 OF THE FAMILY COURT**| ||**JUDGE, VADAKARA**|