High Court of KeralaSingle Judge2023-01-10Set aside Exts.P12–P15; remand for afresh adjud...

Suresh K v Vasantha K and Akshay S

Case / Petition Number:OP(CRL.) NO. 662 OF 2022

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2023-01-10
Court Decision / Holding: Exts.P12 to P15 (the Family Court orders) are set aside; the matter is remanded to the Family Court Palakkad for afresh adjudication of the balance and any adjustments in light of settled law, including Rajnesh v. Neha. The petitioner is directed to clear the balance of Rs.41,720 within two weeks from appearance. Both parties are to appear before the Family Court on 02.02.2023. The Registry is to forward a copy of this order to the Family Court for information and compliance.
Final Disposition: Set aside Exts.P12–P15; remand for afresh adjudication on adjustment of maintenance arrears in light of Rajnesh v. Neha; balance Rs.41,720 to be paid within two weeks; appearance before Family Court on 02.02.2023.

Parties to the Case

Appellants / Petitioners

Suresh K

Respondents

Vasantha K
Akshay S

Legal Representation & Advocates

Counsels for Petitioners

• K.S. Sreeraj
• J. Ramkumar

Counsels for Respondents

• V.A. Johnson (Varikkappallil)

Case Synopsis & Summary

This is an Original Petition (Criminal) under Article 227 of the Constitution of India filed by Suresh K challenging Exts.P12 to P15 orders of the Family Court, Palakkad, in MC No.330/2011. The Family Court had dealt with maintenance arrears arising from OP No.590/2015 and MC No.330/2011, granting past and future maintenance to the respondents and ordering adjustments in execution. As on 22.12.2022, the petitioner claimed a balance of Rs.42,700 (Rs.10,000 deposited), while counsel for the respondents contended, based on nine CMPs filed to execute the MC, that the outstanding balance was Rs.3,40,000. The petitioner asserted that the sale of his property was used to offset past maintenance and that the balance after such adjustments should be payable only as future maintenance up to a specified date; he also claimed that the decree in OP No.590/2015 and MC No.330/2011 had effectively become final, so adjustments required a proper legal route. The respondents argued the adjustment was improper because the decree had finality and the remedy was to set aside the decree itself. The High Court directs that the adjustment issue be decided in light of settled law, citing Rajnesh v. Neha, and remands to the Family Court for afresh adjudication. It sets a two-week deadline for the petitioner to clear Rs.41,720 and directs appearance on 02.02.2023, with a copy of the order to the Family Court for compliance.

Provisions of Law Cited

Article 227 of the Constitution of India

Legal Doctrines & Maxims

Doctrine of adjustment of maintenance arrears; afresh consideration by the court following settled law (Rajnesh v. Neha).

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the balance outstanding toward maintenance, calculated as Rs.42,700 (Rs.41,710 noted at one point) as of 22.12.2022, plus the nine CMPs executed to recover arrears, does not reflect the true position because sale proceeds were applied to past maintenance in OP 590/2015 and MC 330/2011, and the balance should be adjusted before enforcement. He maintains that the decree in OP 590/2015 and MC 330/2011 has been final, so the remedy lies in proper adjustment under settled law rather than refusing adjustment; he relies on Rajnesh v. Neha (ILR 2020(4) Kerala 579) and other decisions on adjustment, seeking afresh adjudication to determine the actual balance, and urges payment of Rs.41,720 within two weeks pending fresh orders.

Contentions of Respondents

The respondents submit that the Family Court rightly disallowed adjustment because the decrees in OP 590/2015 and MC 330/2011 were final, and the remedy was to challenge the decree itself rather than adjust within execution. They point to the nine CMPs showing an outstanding balance of Rs.3,40,000 and argue that the court should not shapely alter the terms by adjustment. While Rajnesh is cited as a guiding principle, the Court should interpret the decree’s terms and adhere to the finality of the orders; the outcome should be determined through proper legal channels rather than ad hoc adjustments in execution. They emphasize the necessity for a clear computation based on CMPs and compliance with any fresh directions from the High Court.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Rajnesh v. Neha and another	ILR 2020(4) Kerala 579	Positive	Cited to guide the adjustment of maintenance arrears and remand for afresh consideration in accordance with settled law on adjustment.

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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 A. BADHARUDEEN`** ``` TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944 ``` ``` OP(CRL.) NO. 662 OF 2022 ``` ## **`AGAINST THE ORDER/JUDGMENT IN MC 330/2011 OF FAMILY COURT,`** ## **`PALAKKAD`** ## **`PETITIONER/RESPONDENT:`** ``` SURESH K AGED 55 YEARS S/O.KRISHNANKUTTY, KUNNATHU VEEDU, KATTUKULAM POST, MANGALAM KUNNU, PALAKKAD, PIN - 679514 BY ADVS. K.S.SREERAJ J.RAMKUMAR ``` ## **`RESPONDENTS/PETITIONERS:`** ``` 1VASANTHA K AGED 48 YEARS W/O.SURESH K, CHARANATHKALAM, KODUVAYUR, PALAKKAD, PIN - 678501 2AKSHAY S AGED 21 YEARS S/O.SURESH K, CHARANATHKALAM, KODUVAYUR, PALAKKAD, PIN - 678501 BY ADV V.A.JOHNSON (VARIKKAPPALLIL) V A ``` ``` THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(CRL.) NO. 662 OF 2022 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 10[th] day of January, 2023 This Original Petition (criminal) has been filed under Article 227 of the Constitution of India, challenging Exts.P12 to P15 orders dated 15.11.2020, passed by the Family Court, Palakkad. 2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents. 3. At the time of admission of this original petition, the learned counsel for the petitioner submitted that the balance outstanding as on 22.12.2022 would come to Rs.42,700/(Rupees forty two thousand and seven hundred only). Out of which, Rs.10,000/- only was deposited. 4. It is submitted by the learned counsel for the respondents that, as on today, as per 9 CMPs filed to execute the order in MC No.330/2011, Rs.3,40,000/- (Rupees three lakh forty thousand only) is the outstanding amount. The ``` 3 ``` ## **`OP(CRL.) NO. 662 OF 2022`** learned counsel placed a statement with clarity to appraise the said contention. 5. Whereas the learned counsel for the petitioner also filed a narrative statement contending that as on today, balance is only Rs.41,710/-. 6. According to the learned counsel for the petitioner, in OP No.590/2015, the Family Court granted maintenance at the rate of Rs.3,000/- and Rs.2,500/- for a period from 03.08.2012 to 04.08.2015 (past maintenance) and also future maintenance at the same rate from 05.08.2015. Similarly, after the order in MC No.330/2011 dated 21.03.2013, the Family Court granted maintenance at the rate of Rs.3,500/and Rs.2,500/- each to the respondents respectively. It is submitted further that while executing the decree in OP 590/2015, the property of the petitioner was sold for a total consideration of Rs.3,00,100/- (Rupees three lakh and one hundred only) and thereby the arrears of past maintenance for the period from 03.08.2012 to 04.08.2015 was adjusted and ``` OP(CRL.) NO. 662 OF 2022 ``` ``` 4 ``` the balance out of the sale price was adjusted towards future maintenance upto 03.03.02.2016. According to the learned counsel for the petitioner, the arrears calculated in the nine CMPs on the basis of adjustment of payment in the OP and MC together. 7. Whereas it is submitted by the learned counsel for the respondents that order passed in MC sought to be executed by filing 9 CMPs viz., CMP Nos.78/2016, 261/2016, 31/2018, 32/2018, 1159/2019, 336/2020, 1277/2022, 1280/2022 and 1291/2022 and the balance as per 9 CMPs would come to Rs.3,40,000/-. 8. Going by the orders impugned, it could be gathered that the Family Court disallowed the prayer of adjustment on the ground that the respondents herein filed OP No.590/2015 and MC 330/2011 for maintenance, but rightly or wrongly, the decree was passed in O.P.No.590/2015 and therefore, the remedy of the petitioner was to set aside the decree and the prayer for adjustment is liable to be rejected. ``` OP(CRL.) NO. 662 OF 2022 ``` ## **`5`** 9. It is an admitted fact that either in the order of OP No.590/2015 or in MC No.330/2011 are under challenge before this Court in any manner and therefore, both the decree/order attained finality. How far the plea of adjustment can be considered in the context of the fact discussed is a matter to be decided by the Family Court, afresh, following the ratio in **Rajnesh v. Neha and another (ILR 2020(4) Kerala 579)** and other decisions dealing with adjustment. Therefore, Exts.P12 to P15 orders passed by the Family Court stands set aside with opportunity to the petitioner as well as the respondents to file statements showing the balance outstanding amount. The Family Court is directed to consider the adjustment, if any, as per the settled law and consider the petitions, afresh, and pass orders therein. Meanwhile, there shall be a direction to the petitioner to clear the balance outstanding, admittedly, to the tune of Rs.41,720/- within a period of two weeks from the date of appearance of the parties before the Family Court. Both ``` 6 ``` ``` OP(CRL.) NO. 662 OF 2022 ``` parties are directed to appear before the Family Court, Palakkad on 02.02.2023 Registry is directed to forward a copy of this order to the court below concerned, within two weeks, for information and compliance. **Sd/-** **A. BADHARUDEEN JUDGE** nkr ``` 7 ``` ## **`OP(CRL.) NO. 662 OF 2022`** ## **`APPENDIX OF OP(CRL.) 662/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ORDER DATED 21/03/2013 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD ``` - **`Exhibit P2 TRUE COPY OF THE ORDER DATED 30/11/2015 IN O.P.NO.590/2015 ON THE FILE OF FAMILY COURT, PALAKKAD`** - **`Exhibit P3 TRUE COPY OF THE CERTIFICATE DATED 04.07.2016 ISSUED BY THE SUPERINTENDENT, CENTRAL PRISON & CORRECTIONAL HOME, VIYYUR EVIDENCING THE IMPRISONMENT OF THE PETITIONER`** - **`Exhibit P4 TRUE COPY OF THE C.M.P. NO.78/2016 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD`** - **`Exhibit P5 TRUE COPY OF THE OBJECTION IN C.M.P. NO.78/2016 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD`** - **`Exhibit P6 A TRUE COPY OF THE C.M.P. NO.261/2016 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD`** - **`Exhibit P7 A TRUE COPY OF THE OBJECTION IN C.M.P. NO. 261/2016 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD`** - **`Exhibit P8 TRUE COPY OF THE CMP.NO.31/2018 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD`** - **`Exhibit P9 A TRUE COPY OF THE OBJECTION IN CMP.NO.31/2018 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD`** - **`Exhibit P10 TRUE COPY OF THE CMP.NO.32/2018 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD`** - **`Exhibit P11 TRUE COPY OF THE OBJECTION IN CMP.NO.32/2018 IN M.C.NO.330/2011 ON THE FILE OF FAMILY COURT, PALAKKAD`** - **`Exhibit P12 A TRUE COPY OF THE ORDER DATED 15/11/2022 IN CMP.NO.78/2016 IN MC.NO.330/2011 OF THE FAMILY COURT,`** ``` OP(CRL.) NO. 662 OF 2022 ``` ``` 8 ``` ## **`PALAKKAD`** ``` Exhibit P13 ``` ## **`Exhibit P14`** ``` Exhibit P15 ``` ``` A TRUE COPY OF THE ORDER DATED 15/11/2022 IN CMP.NO.261/2016 IN MC.NO.330/2011 OF THE FAMILY COURT, PALAKKAD ``` ``` TRUE COPY OF THE ORDER DATED 15/11/2022 IN CMP.NO.31/2018 IN MC.NO.330/2011 OF THE FAMILY COURT, PALAKKAD ``` ``` TRUE COPY OF THE ORDER DATED 15/11/2022 IN CMP.NO.32/2018 IN MC.NO.330/2011 OF THE FAMILY COURT, PALAKKAD ``` ``` RESPONDENT EXHIBITS EXHIBIT R1(a) ``` ``` TYPED STATEMENT SHOWING THE PARTICULARS OF ARREARS IN M.C. NO. 330/2011 ON THE FILE OF THE FAMILY COURT PALAKKAD ```