IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 18TH OCTOBER 2010 / 26TH ASWINA 1932 OP (FC).No. 250 of 2010(R) -------------------------- AGAINST THE ORDER DATED 15/07/2010 IN EA 187/2009 IN EP.8/2009 of FAMILY COURT, THIRUVALLA .................... PETITIONER ------------------- ANNIE THOMAS, AGED 29 YEARS, KUZHIVELIL VEEDU, KADAPRA-MANNAR P.O., NIRANAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.T.P.PRADEEP RESPONDENT: --------------- 1. THOMAS JOHN, THAYYIL VEEDU, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK, THIRUVALLA PO-689 101. 2. CHINNAMMA JOHN, DO. 3. PREMA JOHN @ ELIZABETH JOHN, DO. 4. SUSAN JOHN @ ANNAMMA, MULLAVARICKAL VEEDU, ANKAMALI KARA, FROM THAYYIL VEEDU, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK-689 101. 5. SOSAMMA JOHN, ERAVIMADATHIL, KAUVATTA MURI, KARUVATTA VILLAGE-690 517, FROM THAYYIL VEEDU, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK. 6. LALY JOHN @ MARY, THAYYIL VEEDU, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK, (LALY JOHN, MOKASHI HOUSE, BHATT LANE, REPRESENTED BY POWER OF ATTORNEY HOLDER SUSAN JOHN, IST CLAIM PETITIONER)0689 101. -: 2 :- 7. JOSEPH JOHN, THAYYIL VEEDU, KUTTAPPUZHA VILLAGE, THIRUVALLA TALUK, (LALY JOHN, MOKASHI HOUSE, BHATT LANE, REPRESENTED BY POWER OF ATTORNEY HOLDER SUSAN JOHN IST CLAIM PETITIONER)-689 101. THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.(FC).No. 250 of 2010 R - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of October, 2010 JUDGMENT Basant, J. Petitioner is the decree holder/wife. For securing the amount due as per a compromise decree, she filed a petition for execution. A property was attached. Claims were made by the siblings of the judgment debtor/husband. The court below, by Ext.P5 order, excluded 2/5 shares of the property under attachment from sale. This was allegedly on the basis of the agreement between the parties. According to the wife/execution petitioner, not 2/5 shares but 2/9 shares alone are entitled to be excluded from sale. She therefore filed a petition for review of Ext.P5 order. By Ext.P7 order the said I.A. was dismissed. O.P.(FC).No. 250 of 2010 2 2. The learned counsel for the petitioner/decree holder/wife submits that as a matter of fact only 2/9 shares (i.e. 2 x 2/3 x 1/6) and not 2/5 shares are liable to be excluded as the share of the two out of six brothers. Prima facie we find merit in that submission. We are, in these circumstances, satisfied that Exts.P5 and P7 orders can be set aside and the court below can be directed to dispose of E.A. 121 of 2009 afresh in accordance with law. We note that service on the respondents is not complete. But we are satisfied in the peculiar facts and circumstances of this case that it is not necessary to wait any longer for issue and return of notice to the respondents. The court below can be directed to dispose of E.A.121 of 2009 after hearing the parties, who are interested in the matter and who are appearing before the court below now. 3. In the result: a) This Original Petition is accordingly allowed in part. b) Exts.P5 and P7 orders are set aside. O.P.(FC).No. 250 of 2010 3 c) The court below is directed to dispose of E.A. 121 of 2009 afresh by hearing the interested parties, who have already appeared before the court below. (R.BASANT) Judge (M.L. JOSEPH FRANCIS) Judge tm