IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 Mat.Appeal.No. 928 of 2009(B) ------------------------------------------- E.A. 84/2009 IN E.P. 97/2008 IN OP.NO.725/2005 OF FAMILY COURT, THIRUVALLA. .................... APPELLANTS/PETITIONERS: ----------------------------------------- 1. KUNJAMMA,AGED 78 YEARS, W/O.K.S.KRISHNAN,MANALIL VEEDU,NADUVILE MURI, NEDUMPRAM VILLAGE. 2. K.SASI,AGED 53 YEARS, S/O.K.S.KRISHNAN,MANALIL VEEDU, NADUVILE MURI, NEDUMPURAM VILLAGE. 3. K.THAMPI,AGED 50 YEARS, S/O.K.S.KRISHNAN,MANALIL VEEDU,NADUVILE MURI, NEDUMPRAM VILLAGE. 4. K.RADHA,AGED 47 YEARS, D/O.K.S.KRISHNAN,MANALIL VEEDU,NADUVILE MURI, NEDUMPRAM VILLAGE. 5. K.RAJU,AGED 56 YEARS, S/O.K.S.KRISHNAN,MANALIL VEEDU, NADUVILE MURI, NEDUMPRAM VILLAGE. 6. K.AMBI,S/O.K.S.KRISHNAN,MANALIL VEEDU, NADUVILE MURI,NEDUMPRAM VILLAGE. BY ADVS. MR.RENJITH B.MARAR, MR.L.RAJESH NARAYAN IYER, SMT.LAKSHMI.N.KAIMAL. RESPONDENTS: ------------------------ 1. K.R.KOMALAM,AGED 29 YEARS, D/O.RAGHAVAN,KICHANI VEEDU,NIRANAM KIZHAKKUMBHAGOM MURI,NIRANAM VILLAGE. MAT. APPEAL NO.928/2009-B: 2. K.SURA,AGED 33 YEARS,S/O.KUNJAMMA, MANALIL VEEDU,KALLUMKAL.P.O, NEDUMPRAM VILLAGE. R1 BY ADVS. MR.ABRAHAM SAMSON, SMT.LOVELY SAMSON. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- Mat.Appeal No. 928 OF 2009 ----------------------------------------------------- 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