IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24083 of 2009(Q)
1. JOHNY A.C., S/O.LATE A.V.CHACKAPPAN,
... Petitioner
Vs
1. SUSY THOMAS, D/O.THOMAS,
... Respondent
For Petitioner :SRI.GEORGE JOHNSON
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :21/08/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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W.P.C.NO. 24083 OF 2009
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Dated 21st August 2009
JUDGMENT
Petitioner is the respondent and
respondent, the petitioner in M.C.57/2009 on the file
of Judicial First Class Magistrate-I, Aluva. This
petition is filed under Sections 12 and 19 of
Protection of Women from Domestic Violence Act.
Respondent filed Crl.M.P.2348/2009 under Section 23
of the Act for an interim order. Under Ext.P5
order interim order prohibiting petitioner from
alienating the property was granted on 17/7/2009. This
petition is filed under Articles 226 and 227 of
Constitution of India to quash Ext.P4 complaint as
well as Ext.P5 order and to direct the Magistrate to
consider the objection raised by the petitioner in
Crl.M.P.2348/2009.
2. Learned counsel appearing for the
petitioner was heard.
3. Argument of the learned counsel
appearing for the petitioner is that under Sub Section
WPC 24083/09
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3 of Section 26 of the Act in case any relief has been
obtained by the aggrieved person, in any other
proceeding other than a proceeding under the Act, she
shall be bound to inform the Magistrate of the grant of
such relief and even though first respondent has
obtained an order of attachment from Family court,
Ernakulam that fact was suppressed from the learned
Magistrate and therefore learned Magistrate should not
have granted interim order.
4. An interim order granted under Section 23
is appealable under Section 29 of the Act. When remedy
of appeal is available to the petitioner, it is not for
this court to quash Ext.P5 order exercising the
extraordinary powers under Article 226/277 of
Constitution of India.
5. Learned counsel appearing for petitioner
submitted that Sub Section 2 of Section 25 of the Act
enables the Magistrate, on the application of either the
aggrieved person or the respondent to modify or revoke
the order passed earlier and when petitioner has filed
objection to the petition filed by the respondent for
interim order respondent, learned Magistrate is to
dispose that application. It is submitted that
WPC 24083/09
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application is not being disposed and a direction be
issued to the Magistrate to dispose the application.
6. If petitioner has filed an application
under Sub Section 2 of Section 25 of the Act to modify
or revoke the interim ex-parte order passed under
Section 23, Magistrate is to dispose the petition
immediately. If petitioner files an application under
Section 25(2), Magistrate to dispose the same without
delay.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.