IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr P(C) No. 131 of 2005()
1. L.RADHAMMAL, D/O.LEKSHMANAN ACHARI,
... Petitioner
2. THARANATH T.R., S/O.THANKAPPANACHARY,
Vs
1. THANKAPPAN ACHARI, S/O.KUMARAN ACHARI,
... Respondent
2. ABDUL RAHIM, S/O.MOHAMMED KUNJU,
3. SAINUDDIN, S/O.MOHAMMADALI,
For Petitioner :SRI.P.SANJAY
For Respondent :SRI.GOPAKUMAR R.THALIYAL
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :18/02/2008
O R D E R
HARUN-UL-RASHID, J.
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TRANSFER PETITION NO. 131 OF 2005
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Dated this the 18th day of February, 2008
O R D E R
The prayer in this Transfer Petition is to retransfer the cases
transferred suo motu by the Family Court, Thiruvananthapuram as per the
common order dated 1.4.2005 in E.A.Nos. 194 and 195 of 2004 in E.P.
No.129 of 2003 in O.S. No.25 of 1992 and E.A. Nos. 203, 204 and 205 of
2004 in E.P. No.25 of 1998 in O.S. No.25 of 1992.
2. The petitioners are the plaintiffs in the suit, O.S. No.25 of 1992,
on the file of the Family Court, Thiruvananthapuram. The suit was filed
during the year 1991 before the Sub Court, Attingal and in 1992 the same
was transferred to the Family Court, Thiruvananthapuram on the formation
of the latter. E.P.No.129 of 2003 was pending before the Family Court,
Thiruvananthapuram. The execution petition was filed for the purpose of
realisation of portions of maintenance, past and future, decreed in O.S.
No.25 of 1992 by sale of the attached properties. The judgment debtor
executed the sale deed registered as document No.2171 of 1993 purporting
Transfer Petition No131/2005 2
to transfer three items of the attached property to the second counter
petitioner. On 23.1.1998, the second counter petitioner executed a sale
deed in favour of the third counter petitioner in respect of the said items of
properties under attachment. The decree holders filed execution petitions
for realisation of future maintenance, the last execution petition being E.P.
No.129 of 2003. The claim petition filed by the second counter petitioner
was dismissed on merits. When the sale stood posted for confirmation, the
third counter petitioner filed another claim petition claiming title over the
same properties. The second claim petition, according to the plaintiffs, is
not maintainable at all in view of proviso (a) to sub-rule(1) of Rule 58 of
Order 21 C.P.C. Though objections were filed opposing the
maintainability of the claim petition, the court below after hearing the
matter on 7.3.2005 and 17.3.2005 posted the matter for orders on
22.3.2005. On 1.4.2005, the Family Court without passing orders on
merits, disposed of the matter by sending the E.As. and the connected
records to the Additional Family Court, Nedumangad after stating that the
petitions were finally heard on 1.4.2005.
3. The learned counsel appearing for the revision petitioners
submitted that transfer of the execution petitions to the Additional Family
Court, Nedumangad is illegal for the reason that the said court has no
Transfer Petition No131/2005 3
jurisdiction to decide the issue and that the only court having jurisdiction
to decide the execution proceedings is the Family Court,
Thiruvananthapuram which passed the decree. Learned counsel brought
my attention to the explanation to Section 37 C.P.C. It reads as follows:
Explanation.– The Court of first instance
does not cease to have jurisdiction to execute a
decree merely on the ground that after the
institution of the suit wherein the decree was
passed or after the passing of the decree, any area
has been transferred from the jurisdiction of that
Court to the jurisdiction of any other Court; but in
every such case, such other Court shall also have
jurisdiction to execute the decree, if at the time of
making the application for execution of the
decree it would have jurisdiction to try the said
suit.”
Counsel also placed reliance on the decision of the Supreme Court
reported in Ramanna v. Nallaparaju, A.I.R. 1956 S.C. 87. In paragraph
12 of the above judgment, the Supreme Court held that it is settled law that
the Court which actually passed the decree does not lose its jurisdiction to
execute it, by reason of the subject-matter thereof being transferred
subsequently to the jurisdiction of another Court. Counsel also brought to
my notice the fact that the Additional Family Court at Nedumangad was
established as per G.O.(MS) No.5/2005/4 dated 5.1.2005 and that it was
mentioned in the said Government Order that the Family Court at
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Nedumangad has been established with effect from 7.1.2005. Since both
the execution petitions were filed long before the date of establishment of
the Family Court at Nedumangad, counsel submits that the only court that
can examine the matter on merits is the Family Court,
Thiruvananthapuram.
4. In view of the explanation to Section 37 C.P.C., the order passed
by the Family Court, Thiruvananthapuram on 1.4.2005 transferring the
proceedings to the Additional Family Court at Nedumangad is liable to be
set aside and E.P. No.129 of 2003 which was re-numbered as E.P. No.68
of 2005 on the file of the Additional Family Court, Nedumangad is liable
to be res-transferred to the Family Court, Thiruvananthapuram.
In the result, the Transfer Petition is allowed. E.P. No. 129 of 2003
which was re-numbered by the Additional Family Court, Nedumangad and
all connected petitions shall stand re-transferred to the Family Court,
Thiruvananthapuram. The Family Court, Thiruvananthapuram shall
dispose of the execution petitions and all other miscellaneous matters
within a period of four months from the date of receipt of a copy of this
Order. The Additional Family Court, Nedumangad is directed to transmit
the files and records to the Family Court, Thiruvananthapuram
Transfer Petition No131/2005 5
immediately. The parties shall appear before the Family Court,
Thiruvananthapuram on 11.3.2008. The Registry shall issue necessary
communications forthwith.
(HARUN-UL-RASHID, JUDGE)
sp/
Transfer Petition No131/2005 6
HAURN-UL-RASHID, J.
Transfer Petition .NO131/05
O R D E R
18TH FEBRUARY, 2008