IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 928 of 2009()
1. KUNJAMMA,AGEE 78 YEARS,
... Petitioner
2. K.SASI,AGED 53 YEARS,
3. K.THAMPI,AGED 50 YEARS,
4. K.RADHA,AGED 47 YEARS,
5. K.RAJU,AGED 56 YEARS,
6. K.AMBI,S/O.K.S.KRISHNAN,MANALIL VEEDU,
Vs
1. K.R.KOMALAM,AGED 29 YEARS,
... Respondent
2. K.SURA,AGED 33 YEARS,S/O.KUNJAMMA,
For Petitioner :SRI.RENJITH B.MARAR
For Respondent :SRI.ABRAHAM SAMSON
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :16/12/2009
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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Mat.Appeal No. 928 OF 2009
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DATED THIS THE 16th DAY OF DECEMBER, 2009
J U D G M E N T
Basant, J.
The appellants have come before this Court claiming to be
aggrieved by the impugned order, a copy of which is produced as
Annexure-II. The first respondent herein had initiated
proceedings against the 2nd respondent, her husband. An
application was filed for attachment of the property in execution
of the decree passed in the said O.P.No.725/05. Accordingly, an
item of property assuming the same to be that of the 2nd
respondent exclusively was attached. According to the
appellants, the second respondent is not the exclusive owner of
the said property. According to them, he has only a fractional
right in respect of that property. But the court below was
proceeding to sell the property in execution incorrectly assuming
the same to be the exclusive property of the 2nd respondent. It is
hence that the appellants were obliged to file E.A.No.84/09 in
E.P.No.97/2008. That petition was disposed of by the impugned
Mat.A.No.928/09 -2-
order.
2. We have heard, the learned counsel for the appellants
and the learned counsel counsel for the first respondent. We
have gone through the impugned order. We note that in the
impugned order, there is no specific and pointed discussion as to
whether the 2nd respondent has exclusive right over the property.
We had called for the report of the Family Court also in our
yearning to be apprised of all the relevant circumstances. We are
now satisfied that the claim of the appellants had not received
the consideration which it deserves in the impugned order. In
these circumstances, without making any other observations on
merits, we are satisfied that the impugned order deserves to be
set aside and the court below must be directed to dispose of
E.A.No.84/09 afresh after giving an opportunity to the parties
adduce further evidence, if any.
3. In the result:
(a) this appeal is allowed.
(b) the impugned order is set aside.
(c) The court below is directed to dispose of E.A.No.84/09
Mat.A.No.928/09 -3-
afresh in accordance with law after giving the parties
opportunity to adduce further evidence.
(d) The court below is further directed to dispose of
E.A.No.84/09 afresh as expeditiously as possible, at
any rate within an period of three months from the
date on which a copy of this judgment is placed before
it.
4. Compliance shall be reported to this Court.
R.BASANT, JUDGE.
M.C.HARI RANI, JUDGE.
dsn