Suma v. Sinimol and Sunil Kumar

## **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 10[TH] DAY OF NOVEMBER 2022/19TH KARTHIKA,1944 O.P.(FC) NO. 509 OF 2022** **AGAINST THE ORDER DATED 30.07.2022 IN E.P.NO.11 OF 203 IN O.P.NO.673 OF 2005 OF THE FAMILY COURT, IRINJALAKUDA PETITIONER:** **SUMA,** **AGED 50 YEARS, W/O. KADAVIL PARAMBIL VEETTIL PRABHAKARAN, ERAVATHUR (P.O), KOCHUKADAVU DESOM, THIRUMUKKULAM VILLAGE MUKUNDAPURAM TALUK, PIN-680734.** **BY ADV K.V.BHADRA KUMARI** ## **RESPONDENTS:** - **1 SINIMOL AGED 43 YEARS, D/O. GOPALAKRISHNAN, AMBADATHU VEEDU, PARAMBUSSERY, KURUMASSERY P.O.** **ALUVA. ERNAKULAM DISTRICT, PIN-683579.** **2 SUNIL KUMAR, AGED 48 YEARS, S/O. NARAYANAMENON, VADUTHALA VEEDU, KUZHOOR (P.O), MALA (VIA), MUKUNDAPURAM TALUK, PIN-680734.** **R1 BY ADV AYPE JOSEPH** **THIS O.P.(FAMILY COURT) HAVING COME UP FOR FINAL** **HEARING ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 O.P.(FC) No.509 of 2022 ## **JUDGMENT** ## Ajithkumar, J. In this Original Petition filed under Article 227 of the Constitution of India, the petitioner challenges legality of the sale proclamation drawn by the Family Court, Irinjalakuda in E.P.No.11 of 2013 in O.P.No.673 of 2005. The petitioner claims that she is a co-owner of the property proclaimed for sale and in negation of her right in the property, steps for sale have been taken. She, therefore, has filed this Original Petition seeking to set aside Ext.P6 proclamation schedule drawn in E.P.No.11 of 2013 in O.P.No.673 of 2005 (wrongly noted as O.P.No.783 of 2005 in Ext.P6). 2. On 01.09.2022, the Original Petition was admitted and notice was directed to be served on the respondent. An order of interim stay was granted for a period of one month. Interim order was later extended for one more month on the condition that either the petitioner 3 O.P.(FC) No.509 of 2022 or the 2[nd] respondent-judgment debtor shall deposit Rs.2 lakhs before the Family Court, Irinjalakuda towards the decree debt, within two weeks. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the 1[st] respondent. 4. The 1[st] respondent is the decree holder. The 2[nd] respondent is the judgment debtor. The decree in O.P.No.673 of 2005 allowed the 1[st] respondent to realise an amount of Rs.3,50,250/- along with interest at the rate of 18% per annum from the date of decree, i.e., 10.06.2005 till realisation. The decree passed by the Family Court, Ernakulam was transferred for execution to the Family Court, Thrissur and then to the Family Court, Irinjalakuda. 15 cents of property comprised in Sy.No.736 of Thirumukkulam Village was attached. When the said property was brought on sale in E.P.No.11 of 2013, the petitioner filed a claim petition as E.A.No.12 of 2014. That 4 ## O.P.(FC) No.509 of 2022 petition was disposed of by the Family Court as per order dated 25.09.2015. Against the said order, the petitioner preferred O.P.(FC) No.432 of 2018 before this Court. In that Original Petition also, the petitioner contended that the sale proclamation was drawn up incorrectly inasmuch as the entire 15 cents of property was proclaimed for sale. 5. The case of the petitioner is that the said 15 cents of property originally belonged to Sri.Narayana Menon, who died on 27.10.2007. Later, mother of the petitioner died on 26.03.2013. Therefore, the property devolved upon the petitioner and the 2[nd] respondent in equal halves. Disregarding the right of the petitioner, the 1[st] respondent, who is the divorced wife of the 2[nd] respondent brought the property on sale. This Court after considering the said contentions allowed O.P.(FC) No.432 of 2018 holding that the petitioner has undivided half right in the property included in the proclamation schedule, and therefore the 1[st] respondent was entitled to proceed only 5 ## O.P.(FC) No.509 of 2022 against the undivided half right in the property that belonged to the 2[nd] respondent. 6. In the light of the said judgment, the Family Court, Irinjalakuda resumed the proceedings. Ext.P6 is the proclamation drawn up for sale of half right of the 2[nd] respondent in the property. The schedule to Ext.P6 proclamation contains the description that excluding 7½ cents of property over which the petitioner has right, half undivided right in 15 cents of land comprised in Sy.No.736 of Thirumukkulam Village would be sold. 7. The learned counsel appearing for the petitioner would submit that the description of the property contained in Ext.P6 proclamation does not recognize the right of the petitioner, and therefore Ext.P6 is liable to be set aside. There cannot be any doubt as to the position that undivided right in an immovable property is liable to be sold in auction in execution of a money decree. The description of the property in Ext.P6 states half share as 7½ cents. Of course, 6 ## O.P.(FC) No.509 of 2022 area of the half share can be admeasured only after metes and bound partition. But, when it is stated that undivided half share in the 15 cents of property, over which the 2[nd] respondent has right alone is put on sale, description of the property proposed to be sold has precision. The said description is quite in consonance with the direction of this Court in the judgment dated 13.08.2018 in O.P.(FC) No.438 of 2008. The sale of undivided half right in the said 15 cents of land in execution of the decree in O.P.No.673 of 2005 does not affect the right of the petitioner. 8. The petitioner further contended that the final decree application for partition of the said 15 cents of property in terms of the preliminary decree passed in O.S.No.1030 of 2015 is pending consideration of the Munsiff’s Court, Kodungallur and until a final decree is drawn up in the said suit, sale of an undivided share cannot be permitted. Such a contention is untenable. In the judgment in O.P.(FC) No.432 of 2018 this question was 7 O.P.(FC) No.509 of 2022 dealt with and this court relying on the principle laid down in **Ramdas v. Sitabal [AIR 2009 SC 2735]** held that the undivided right in an immovable property can be sold in auction and the right of the purchaser is to get his share partitioned. In the said circumstances, we are of the view that there is no merit in the contentions raised by the petitioner in this Original Petition. The Original Petition is dismissed accordingly. **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** dkr 8 O.P.(FC) No.509 of 2022 ## **APPENDIX OF OP (FC) 509/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE CLAIM PETITION FILED BYT THE PETITIONER BEFORE THE FAMILY COURT ,IRINJALAKUDA AS E.A 12/2014 IN EP 11/2013 IN OP 673/2005** **Exhibit P2** **TRUE COPY OF THE ORDER PASSED BY THE COURT BELOW IN E.A. NO:12/2014 IN E.P. NO:11/2013 IN O.P. NO:673/2005 DATED 25/9/2015** **Exhibit P3 TRUE COPY OF THE PRELIMINARY DECREE PASSED BY THE MUNSIFF'S COURT, KODUNGALLOOR IN O.S. NO:1030/2015 DATED 5/4/2016** - **Exhibit P4 TRUE COPY OF THE AGREEMENT DATED 9/12/2019 ENTERED BETWEEN THE 1ST & 2ND RESPONDENTS** - **Exhibit P5 TRUE COPY OF THE FINAL DECREE APPLICATION FDA NO:6/2022 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, KOUNDALLOOR** **Exhibit P6 TRUE COPY OF THE SALE PROCLAMATION ISSUED BY THE FAMILY COURT, IRINJALAKUDA DATED 30/7/2022**