IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 Tr.P(C).No. 131 of 2005() ------------------------- AGAINST THE ORDER DATED 01/04/2005 IN EA 194/04 & 195/04 IN EP 129/03 IN OS.25/1992 of FAMILY COURT,TRIVANDRUM .................... PETITIONERS: 1. L.RADHAMMAL, D/O.LEKSHMANAN ACHARI, AGED 51 YEARS, CHARUVILA PUTHEN VEEDU, KODITHOOKKIYA KUNNU, KALLARA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DIST. 2. THARANATH T.R., S/O.THANKAPPANACHARY, AGED 22 YEARS, RESIDING AT CHARUVILA PUTHEN VEEDU, KODITHOOKKIYA KUNNU, KALLARA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DIST, (KODITHOOKIYAKUNNU P.O.) BY ADVS. SRI.P.SANJAY SRI.A.PARVATHI MENON COUNTER PETITIONERS: 1. THANKAPPAN ACHARI, S/O.KUMARAN ACHARI, AGED 54 YEARS, THUNDUVILAKATHU VEEDU, KOPPAN DESOM, MANIKKAL VILLAGE, NEDUMANGAD TALUK, NOW RESIDING AT THUNDUVILAKATHU VEEDU, PATHAMKALLU, ARALAMOODU, ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DIST. 2. ABDUL RAHIM, S/O.MOHAMMED KUNJU, THUNDUVILAKATHU VEEDU, KOPPAM DESOM, KUTHIRAKULAM P.O., PIRAPPANCODU, VEMPAYAM, KOPPAM DESOM, MANICKAL VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DIST. 3. SAINUDDIN, S/O.MOHAMMADALI, NIJUM MANZIL, KOPPAM, KIZHAKKEKARA MURI, MANICKAL VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DIST. BY ADVS. SRI.GOPAKUMAR R.THALIYAL-R1 TO R3 SRI. V. MADHURIPAN PILLAI THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.2.2008, THE COURT ON THE SAME DAY ON PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------------------------------- TRANSFER PETITION NO. 131 OF 2005 ---------------------------------------------------------------- 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 Transfer Petition No131/2005 4 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