High Court of KeralaDivision Bench2008-02-20Mat.Appeal No.700/2007 dismissed; no order as t...

Vijayamma v. Santakumari Amma @ Santha S. Pillai and Sadasivan Pillai

Case / Petition Number:Mat.Appeal No. 700 of 2007

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: KURIAN JOSEPH
HARUN-UL-RASHID
Judgment Date: 2008-02-20
Court Decision / Holding: The Matrimonial Appeal is dismissed; there will be no order as to costs.
Final Disposition: Mat.Appeal No.700/2007 dismissed; no order as to costs.

Parties to the Case

Appellants / Petitioners

Vijayamma

Respondents

Santhakumari Amma @ Santha S. Pillai
Sadasivan Pillai

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Liju V. Stephen

Counsels for Respondents

• Sri. Joseph George

Case Synopsis & Summary

This matrimonial appeal challenges a common family court order (dated 12.9.2007) in E.A. Nos. 35/2007, 36/2007 and 100/2007 in E.P. No.15/2003 in O.P. No.114/2000, Thiruvalla. The appellant, Vijayamma, claimed the first respondent (Santakumari Amma) obtained a maintenance order against her husband (second respondent) and contends the immovable properties attached by the family court do not belong to her. She had originally filed a civil suit (O.S. No. 402/2005) under Order 21 Rule 58(5) CPC, which was dismissed for default; she then pursued restoration petitions, condonation applications for delay, and an application to set aside the attachment. The family court found the restoration/setting-aside petitions barred by limitation and dismissed them, relying on Damodaran Pillai v. South Indian Bank Ltd. (SC) for the proposition that Section 5 of the Limitation Act cannot be invoked in execution proceedings and that restoration must be filed within 30 days from the order, with no inherent power to condone delay. The court also held there was no convincing evidence that the attached movables belonged to the appellant. Relying on Vijayamma v. Sadasivan Pillai (2007) to the effect that injunction cannot be issued against ongoing family court proceedings by a Munsiff’s Court, the appellate court dismissed the appeal. The judgment upholds the family court’s order, with no costs.

Provisions of Law Cited

Section 41(b) of the Specific Relief ActSection 5 of the Limitation Act, 1963Order 21 Rule 58(5) CPCExecution proceedings under Order XXI of the CPC

Legal Doctrines & Maxims

No injunction can be granted against proceedings pending before the Family Court by a Munsiff's Court (as per Vijayamma v. Sadasivan Pillai)
Limitation for restoration under execution proceedings starts from the order date and must be filed within 30 days (Damodaran Pillai)
Section 41(b) Specific Relief Act applicability in attachment/relief proceedings (as per reasoning in the judgment)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the attached movables and immovable properties allegedly belonging to her were wrongly attached by the Family Court. She argues that she had sought restoration of the petition and setting aside of attachment but faced limitation barriers; She had engaged a civil suit under Order 21 Rule 58(5) CPC which was dismissed for default, and argues restoration should have been entertained before the Family Court. She asserts the need to protect her property and rights, citing prior decisions to support the restoration and challenge to attachment, and argues that Section 5 of the Limitation Act should be applicable in this context or, at least, that inherent powers can condone delay.

Contentions of Respondents

The decree holder/Respondents contend that the restoration applications are barred by limitation and that Section 5 of the Limitation Act does not apply to execution proceedings; relying on Damodaran Pillai, they argue condonation of delay cannot be entertained in this context. They maintain there is no credible evidence that the attached items belonged to the appellant, and that the order of attachment was valid and properly effected. They also rely on the precedent that injunctions cannot be issued against proceedings pending before the Family Court (citing Vijayamma v. Sadasivan Pillai). They contend the family court’s findings should stand and the appeal should be dismissed.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Damodaran Pillai v. South Indian Bank Ltd.	2005(4)K.L.T. 192 (SC)	Positive	The Supreme Court held that the starting period of limitation for filing an application dismissed for default is the date of the order, that the restoration must be filed within 30 days, and that Section 5 of the Limitation Act is not applicable in execution proceedings; condonation of delay cannot be entertained in such contexts.
Vijayamma v. Sadasivan Pillai	2007(2)K.L.T. 567	Positive	Division Bench held that no injunction can be granted against proceedings pending before the Family Court by a Munsiff's Court, and that Section 41(b) of the Specific Relief Act applies; used to support the non-interference with ongoing proceedings.
W.P.(C) No.32639 of 2006	–	Positive	Writ petition decided in favor of upholding the Munsiff's Court decision; the judgment notes restoration should have been sought before the Family Court rather than through civil suit, aligning with the appellate approach to restoration petitions.

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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 KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 Mat.Appeal.No. 700 of 2007() ---------------------------AGAINST THE ORDER DATED 12/09/2007 IN EA.35/07,36/07&100/07,EP.15/03 IN OPHMA.114/2000 of FAMILY COURT, THIRUVALLA .................... APPELLANT/PETITIONER/CLAIMANT: ----------------------------------------- VIJAYAMMA, ALANCHERIL HOUSE, MELUKARA MURI, KOZHENCHERRY VILLAGE. BY ADV. SRI.LIJU.V.STEPHEN RESPONDENTS/DECREE HOLDER/JUDGMENT DEBTOR: ------------------------------------------------------ 1. SANTHAKUMARI AMMA @ SANTHA S.PILLAI, MANIVILETHU HOUSE, MALLAPUZHACHERRY MURI. 2. SADASIVAN PILLAI, PADINJARE ALANCHERIL HOUSE, MELUKARA MURI, KOZHENCHERRY VILLAGE. BY ADV. SRI.JOSEPH GEORGE -R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 12/02/2008, THE COURT ON 20.2.2008 DELIVERED THE FOLLOWING: ORDER IN I.A. NO.2972 OF 2007 IN MAT. APPEAL NO. 700 OF 2007. ## DISMISSED 20.2.2008 Sd/-(KURIAN JOSEPH, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------MAT. APPEAL NO. 700 OF 2007 ----------------------------------------------------------------** Dated this the 20[th] day of February, 2008. ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** This appeal is directed against the common order of the Family Court, Thiruvalla dated 12.9.2007 in E.A. Nos. 35 of 2007, 36 of 2007and 100 of 2007 in E.P. No.15 of 2003 in O.P. No.114 of 2000. The appellant is the claimant. 2. The first respondent had obtained an order of maintenance from the Family Court, Thiruvalla in O.P. No.114 of 2000 against her husband, the second respondent. According to the appellant, the first respondent wrongly attached the immovable properties belonging to her. The claim petition was originally dismissed for default. The appellant filed a civil suit, O.S. No.402 of 2005 before the Munsiff's Court, Pathanamthitta under Order 21 Rule 58(5) C.P.C. The said suit is pending adjudication. An interim order of injunction was passed by the Munsiff's Court which was Mat. Appeal No.700/2007 2 later vacated for the reason that the Munsiff's Court being an inferior court to the Family Court, there is express bar under Section 41(b) of the Specific Relief Act. C.M.A. No.82 of 2005 was also dismissed, confirming the decision of the Munsiff's Court. This Court by judgment in W.P.(C) No.32639 of 2006 upheld the decision of the Munsiff's Court and observed that instead of filing a civil suit before the Munsiff's Court, the appellant ought to have filed a restoration application before the Family Court, Thiruvalla. Thereafter, the appellant filed a restoration application, an application for condoning the delay in filing the application for restoration as well as an application for setting aside the attachment. Subsequently, the appellant filed E.A. No.168 of 2007 wherein she has prayed for withdrawal of the claim petition, E.A. No.37 of 2005 without prejudice to her right to file fresh claim petition. 3. The applications were opposed by the decree holder inter alia contending that the application to condone the delay in filing the restoration application is not maintainable for the reason that Section 5 of the Limitation Act, 1963 is not applicable to execution proceedings. The court below relied on the decision of the Supreme Court reported in **Damodaran Pillai v. South Indian Bank Ltd., 2005(4)K.L.T. 192 (SC)** wherein it is held that an application under Section 5 of the Limitation Act Mat. Appeal No.700/2007 3 is not maintainable in a proceeding arising under Order XXI of the Code. On merits also, the court below found that there are no valid reasons for not filing the restoration application in time. The court below also found that no oral or documentary evidence was adduced by the appellant in support of her contentions that the attached property belonged to her. The court below further found that no grounds are made out for setting aside the attachment. 4. We have gone through the decision of the Supreme Court reported in **Damodaran Pillai v. South Indian Bank Ltd., 2005(4)K.L.T. 192 (SC)** . The Supreme Court held that the starting period of limitation for filing an application dismissed for default would be the date of the order and that the application for restoration must be filed within 30 days of the said order and not thereafter. The period of limitation has been fixed by the provisions of the Code and not in terms of the second schedule appended to the section of the Limitation Act. The Supreme Court also held that for the purpose of condonation of delay in the absence of applicability of Section 5 of the Limitation Act, the court cannot invoke its inherent power. In the light of the position discussed above, the application for restoration and the application for setting aside the attachment are hopelessly barred by limitation. So long as there is no Mat. Appeal No.700/2007 4 provision for condoning the delay in filing the restoration application, all the three applications filed by the appellant/petitioner are without any merit and, therefore, liable to be dismissed. 5. We have also noted that the appellant had not filed any objection in time against the order effecting attachment. E.A. No.35 of 2007 was filed long after the attachment was effected and the same was also dismissed for default on 4.7.2005. The attachment was effected on 10.11.2004. The movables attached were entrusted to the appellant by the Amin at the time of effecting the attachment on the undertaking given by the appellant to produce them before the court as and when required. At that time also, she had no case that the movables belonged to her. It was only later that she filed E.A. No.35 of 2007 stating that the movables were attached from her house and that they belonged exclusively to her. A Division Bench of this Court in the decision reported in **Vijayamma v. Sadasivan Pillai, 2007(2)K.L.T. 567** has held that no injunction can be granted against proceedings pending before the Family Court by a Munsiff's Court and that the provisions contained in Section 41(b) of the Specific Relief Act will apply as well. In the result, we find that no reasons are made out to interfere with Mat. Appeal No.700/2007 5 the order passed by the court below. The Matrimonial Appeal is accordingly dismissed. There will be no order as to costs. ## **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** **sp/** Mat. Appeal No.700/2007 6 **KURAIN JOSEPH & HAURN-UL-RASHID, JJ.** **M.A. NO.700/2007**