IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 OP (FC).No. 439 of 2010(R) -------------------------- OS.385/1999 of FAMILY COURT,TRIVANDRUM .................... PETITIONER ------------------ M.SHANAVAS KHAN, JOINT BLOCK DEVELOPMENT OFFICER, BLOCK OFFICE, CHAVAKKADU, TRICHUR. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS: --------------- 1. THAHIRA BEEVI, AYSHWARYA, N.M.8/342, VANDA, NEDUMANGADU P.O., NEDUMANGADU-695541. 2. JESSIM SHANAVAS, N.M.8/342, VANDA, NEDUMANGADU P.O., NEDUMANGADU-695541. 3. ANSU (MINOR), N.M.8/342, VANDA, NEDUMANGADU P.O., NEDUMANGADU-695541. REPRESENTED BY THE FIRST RESPONDENT (GRAND MOTHER). 4. BLOCK DEVELOPMENT OFFICER, BLOCK DEVELOPMENT OFFICE, PAZHAYANNOOR, THRISSUR-680001. THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** O.P(F.C) No.439 of 2010 ***************************** Dated this the 26th day of October, 2010 JUDGMENT BASANT, J. The petitioner has come to this Court to invoke the extraordinary constitutional jurisdiction under Article 227 to assail Ext.P5 order. 2. The Family Court had earlier directed payment of monthly maintenance to the two minor children of the petitioner herein. The payment was not made duly and this obliged the claimants/minor children to approach the Court through their maternal grandmother to claim execution of the order and recovery of the amounts due. Salary of the petitioner was attached. Amounts were being recovered every month. A petition under Article 227 of the Constitution has been filed earlier before this Court. Some interim orders were passed in that petition. That petition subsequently happened to be dismissed for non prosecution, it is submitted. An application for restoration of that petition is also pending, submits the learned counsel. O.P(F.C) No.439 of 2010 2 3. Be that as it may, subsequently a petition was filed for recovery of an amount of Rs.33,750/-, being the arrears that has fallen due subsequently. The execution court, ie. the Family Court, Thiruvananathapuram, has vide Ext.P5 ordered recovery of the amounts monthly from the salary of the petitioner. In the light of Ext.P5 recovery is being effected, it is submitted. The petitioner has come rushing to this Court to assail Ext.P5 order. What is his grievance? The learned counsel for the petitioner submits that the petitioner is willing to deposit the admitted amounts due. Once that is deposited, there is no meaning to effect any attachment, contends the learned counsel. 4. The petitioner must go before the execution court. He must raise his contention about the actual amount due. He must show his bona fides by depositing the actual amounts which, according to him, is due. If the entire amount is deposited, we find no reason for the execution court to continue with the attachment from the monthly salary. Without and before doing that, we find no justification in the course adopted by the petitioner - of rushing to this Court with this petition. 5. This O.P is, in these circumstances, dismissed. We may hasten to observe that the dismissal of this O.P will not in any way fetter the right of the petitioner to go before the O.P(F.C) No.439 of 2010 3 execution court and satisfy the execution court that no amount is due towards the order passed or that he has already deposited or is willing to deposit the entire amount, which is really due, as per the order. If such course is followed by the petitioner, we find no reason for the Family Court to continue with the attachment from the monthly salary. 6. Hand over a copy of this judgment to the learned counsel for the petitioner for production before the execution court. (R.BASANT, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) rtr/