IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 3561 of 2010(R) ------------------------- OP.1204/2009 of FAMILY COURT,ERNAKULAM .................... PETITIONER: --------------- TINTU VARGHESE, AGED 25 YEARS, D/O.C.G.VARGHESE, CHEMBOTHUMKUDY HOUSE, MORAKKALA, PALLIKKARA. BY ADV. SRI.BIJU ABRAHAM RESPONDENTS: --------------- 1. ELDHO.C.C, AGED 36 YEARS, S/O.C.M.CHERIAN, CHATHANATH HOUSE, EDATHALA.P.O, ALUVA. 2. C.M.CHERIAN, AGED ABOUT 65 YEARS, CHATHANATH HOUSE, THENGODU, KAKKANADU VIA, THENGODU.P.O. ADV. SRI.KRISHNADAS P. NAIR FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON 23/03/2010 DELIVERED THE FOLLOWING: WP(C).No. 3561 of 2010(R) APPENDIX PETITIONER'S EXHIBITS: EXT;P1 : TRUE COPY OF THE PETITION IN O.P. NO. 1204/09 ON THE FILES OF FAMILY COURT, ERNAKULAM. EXT.P2 : A TRUE COPY OF THE APPLICATION FOR ATTACHMENT BEFORE JUDGMENT FILED AS I.A. NO. 3232/2009 IN O.P. NO. 1204 OF 2009 ON THE FILES OF FAMILY COURT, ERNAKULAM. EXTP3 : A TRUE COPY OF THE SCHEDULE OF PROPERTY BELONGS TO THE SECOND RESPONDENT PRODUCED IN O.P. NO. 1204 OF 2009 EXT.P4 : A TRUE COPY OF THE ORDER OF CONDITIONAL ATTACHMENT PASSED AGAINST THE 2ND RESPONDENT OVER EXT.P3 SCHEDULE PROPERTY DATED 3.8.2009. EXT.P5 : A TRUE COPY OF OBJECTION FILED BY THE 2ND RESPONDENT IN I.A. NO. 3232/2009 IN O.P. 1204/2009 ON THE FILES OF FAMILY COURT, ERNAKULAM. EXT.P6 : A TRUE COPY OF THE APPLICATION NO. 5025/2009 IN I.A.NO. 3232/2009 IN O.P. NO. 1204/2009 ON THE FILES OF FAMILY COURT ERNAKULAM. EXT.P7 : A TRUE COPY OF THE COUNTER AFFIDAVIT IN I.A. NO.5025/2009 IN I.A. NO. 3232/2009 IN O.P. NO. 1204/2009 ON THE FILES OF FAMILY COURT, ERNAKULAM. EXT.P8 : A TRUE COPY OF THE ORDER DATED 18.12.2009 IN I.A. NO. 3232/2009 & 5025/2009 IN O.P. NO. 1204/2009 ON THE FILES OF FAMILY COURT, ERNAKULAM. RESPONDENTS'S EXHIBITS: EXT.R1 : TRUE COPY OF THE I.A. NO. 3231/09 AND THE ORDER DATED 3.8.2009 ON THE FAMILY COURT, ERNAKULAM. EXT.R2 : TRUE COPY OF THE LIST OF DOCUMENTS PRODUCED BY THE 1ST RESPONDENT ON 2.12.2009 IN O.P. NO. 1204/2009 BEFORE THE FAMILY COURT, ERNAKULAM. EXT.R3 ; TRUE COPY OF BUILDING TAX PAID BY THE PETITIONER DATED 20.10.2008 EXT.R3(a) : TRUE COPY OF PROPERTY TAX PAID BY THE PETITIONER DATED 8.5.2008. K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 3561 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010 JUDGMENT Joseph Francis J., This Writ petition is filed under Article 227 with the following prayers: (a) A writ of certiorari or any other appropriate writ, order of directions quashing Ext.P8 order of the court below holding that the same is improper and illegal. (b) A writ, order or direction attaching Ext.P3 property till the disposal of Ext.P1 petition before the Family Court, Ernakulam. 2. The facts of the case are briefly as follows: Petitioner is the petitioner in O.P. No. 1204 of 2009 pending on the file of the Family Court, Ernakulam which had been instituted W.P.(C) No. 3561 of 2010 2 by her to recover her family share given to the respondents at the time of marriage. In the O.P. itself it was clearly stated that Rs.5 lakhs had been entrusted to the 2nd respondent in trust as the Family share of the petitioner. Ext.P1 is the copy petition filed in O.P. No. 1204 of 2009 on the file of Family Court, Ernakulam. 3. The petition for recovery of money was necessitated just because the 1st respondent without any valid reason alleging mental problem to the petitioner had instituted a petition for Divorce as O.P. No. 1102 of 2009 before the Family Court, Ernakulam. At the time of institution of the petition, the petitioner was working as a teacher in a private unaided school near by the 1st respondent's residence. The marriage between the petitioner and 1st respondent had taken place on 26.10.2008 and were living together till 27.06.2009 at the residence of the respondents. The entire gold, money and earnings including the dress of the petitioner is with held by the 2nd respondent at the intervention of the 1st respondent. The petitioner also lost her job. 4. Along with Ext.P1 petition the petitioner had applied for the W.P.(C) No. 3561 of 2010 3 attachment before judgment over the schedule properties belonging to the 2nd respondent and a seperate schedule of property of 2nd respondent was also given for effecting attachment to secure the amount claimed as against the 2nd respondent. Ext.P2 is the true copy of application for attachment before judgment filed as I.A. No. 3232 of 2009 in O.P. No. 1204 of 2009 on the file of Family Court, Ernakulam and Ext.P3 is the copy of the schedule of property belonging to the 2nd respondent in O.P. No. 1204 of 2009. The Family Court upon motion of the applications before that Court on 3.8.009 was pleased to pass an interim order of attachment over the Ext.P3 schedule property calling upon the 2nd respondent to show cause why the attachment should not be made absolute. Ext.P4 is the copy of the order of conditional attachment passed against the 2nd respondent over Ext.P3 schedule property dated 3.8.2009. 5. The 2nd respondent filed his objection over the application for attachment on 2.12.2009 and also moved an application to lift the attachment over the property belonging to him alleging that the property belongs to the 1st respondent is worth enough to honour the W.P.(C) No. 3561 of 2010 4 claim of the petitioner and he had entered in to an agreement to sell the schedule property of him with 3rd person. An objection was filed by the 2nd respondent in I.A. No. 3232 of 2009 in O.P. No. 1204 of 2009 on the file of Family court, Ernakulam (Ext.P5). Ext.P6 is the application No. 5025 of 2009 in I.A. No. 3232 of 2009 in O.P. No. 1204 of 2009. 6. The petitioner had filed a detailed objection for the application for lifting the attachment showing the reasons and the requirement of attachment over the schedule property. Ext.P7 is the copy of counter affidavit in I.A. No. 5025 of 2009 in I.A. No. 3232 of 2009 in O. P. No. 1204 of 2009. 7. The petitioner alleges that the court below without considering any of the contentions raised by the petitioner had allowed the application for lifting the attachment by holding that the schedule property is not necessary to satisfy the claims of the petitioner and the property belonging to the 1st respondent which is admittedly mortgaged to a Bank is enough for satisfying the claim of the petitioner. Ext.P8 is the copy of order in I.A. No. 3232 of 2009 W.P.(C) No. 3561 of 2010 5 and 5025 of 2009 in O.P. No. 1204 of 2009 dated 18.12.2009. 8. The respondents filed counter affidavit. We heard the learned counsel for the petitioner and learned counsel for the respondents. 9. As per the order of this court dated 3.2.2010 in the above Writ petition, Ext.P3 property having an extent of 14.5 cents comprised in re-survey No. 247/7 of Kakkanad village belonging to the second respondent was attached. The petitioner in the above Writ petition filed Ext.P1 O.P. No.1204 of 2009 before the Family Court, Ernakulam for recovery of Rs.13,85,000/- from respondents 1 and 2 and their assets. As per the order in I.A. No. 3231 of 2009 of Family Court, Ernakulam 13.6 cents of property and a building comprised in re-survey no. 92/16-2 block no. 25 of Kizhakkambalam village belonging to the first respondent was attached before the judgment. The learned counsel for the respondents submitted that the property belonging to the first respondent is having a market value of more that Rs.40,00,000/- which is sufficient to satisfy the suit claim and that property is having a house loan liability of W.P.(C) No. 3561 of 2010 6 Rs.4,44,730/00 only. In Ext., O.P. No. 1204 of 2009, the petitioner claims Rs.3,23,000/- as value of gold ornaments belonging to the petitioner appropriated by the first respondent, Rs.15,000/- as salary of the petitioner, marriage expenses of Rs.2,50,000/-, Rs.2,50,000/- as balance amount retained by respondents, Rs.50,000/- as value of the articles, Rs.5,00,000/- as compensation for the loss sustained by the petitioner and family and in total Rs.13,85,000/- is claimed by the petitioner. The second respondent produced photographs of the residential building with the location sketch and other specifications before the Family Court. The second respondent also stated that the house belonging to the first respondent was constructed in the year 2008 and the house warming ceremony was in 30.6.2008. The learned Family Court considering all these aspects came to the conclusion that the property of the first respondent attached in I.A. No. 3231 of 2009 is sufficient enough to satisfy the claim of the petitioner in O.P. No. 1204 of 2009 and therefore I.A. No. 5025 of 2009 was allowed and the property of the second respondent W.P.(C) No. 3561 of 2010 7 attached in I.A. No. 3232 of 2009 is raised. 10. The power under Article 227 of the Constitution does not rest with High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the jurisdiction of the court or Tribunal. Since there is no illegality in the Ext.P8 order, we find no reason to interfere with that order. Accordingly this Writ Petition is dismissed. The attachment of the property effected by the order of this court will stand vacated. K.M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/