IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 34678 of 2007(C) ------------------------------------- E.P. NO.433/2006 IN O.S. NO.796/2000 OF MUNSIFF COURT, PALAKKAD. .................................... PETITIONERS: ----------------- 1. ANILA, D/O.K.K.GOPINATHAN NAIR, 'KAILAS', V.P.MARACKAR ROAD, THRIKKAKARA NORTH VILLAGE, KOCHI-24. 2. BHARATHI AMMA, M/O.K.K.GOPINATHAN NAIR, DO. DO. BY ADV. SRI.DINESH R.SHENOY SRI.UNNIKRISHNAN.V.V. RESPONDENTS: --------------------- 1. K.K.GOPINATHAN NAIR, S/O.BHARATHI AMMA, MOOLAKAL KIZHAKKEKOOTTU HOUSE, PARAMPUZHA P.O., THIRUVANJOOR, MANARKKAD VILLAGE, KOTTAYAM-4. 2. PARVATHI AMMA, D/O.VESUMMA, THARAYIL HOUSE, ETHANNOOR AMSOM, CHITTOOR TALUK, PALAKKAD DISTRICT. 3. AJITH, S/O.K.K.GOPINATHAN NAIR, NOW WORKING AT P.O.BOX NO.34438, DUBAI, UAE, PERMANENT RESIDENCE AT `KAILAS', V.P.MARACKAR ROAD, THRIKKAKARA NORTH VILLAGE, KOCHI-24. 4. THE FOOD CORPORATION OF INDIA, REPRESENTED BY ITS MANAGER, FCI, DISTRICT OFFICE (STORAGE) PB NO.1, MALSYAPURI, KOCHI-29, NOW AT KANDAMKULATHI TOWERS, 4TH FLOOR, M.G.ROAD, KOCHI. BY ADV. SRI.NAGARAJ NARAYANAN -R2 SMT.S.KARTHIKA - R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).34678/2007-C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT SUBMITTED IN POP NO.220/2004, SUB COURT, PALAKKAD. EXT.P2: COPY OF FIR NO.588/2000, JFCM II, ERNAKULAM. EXT.P3: COPY OF FINAL REPORT SUBMITTED BY S.I OF POLICE, CENTRAL POLICE STATION, ERNAKULAM IN CRIME NO.588/2000 BEFORE THE JFCM II, ERNAKULAM. EXT.P4: COPY OF THE AGREEMENT DATED 13/06/1991. EXT.P5: COPY OF THE AGREEMENT DATED 19/01/2000. EXT.P6: COPY OF THE DECREE DATED 29/11/2003 IN O.S. NO.796/2000, MUNSIFF COURT, PALAKKAD. EXT.P7: COPY OF OBJECTION DATED 26/10/2007 FILED BY THE 3RD RESPONDENT IN O.P. NO.990/2006, FAMILY COURT, PALAKKAD. EXT.P8: COPY OF THE CHEQUE APPLICATION DATED 15/10/2007 IN EP. NO.433/2006 IN OS NO.796/2000, MUNSIFF COURT, PALAKKAD. EXT.P9: COPY OF THE CLAIM PETITION SUBMITTED BY THE FIRST PETITIONER HEREIN IN NO.433/2006 IN OS. NO.796/2000, MUNSIFF COURT, PALAKKAD. EXT.P10: COPY OF I.A. NO.1937/2008 IN O.P. NO.1/2008 DATED 02/07/2008. EXT.P11: COPY OF IA NO.1938/2008 IN POP NO.1/2008, SUB COURT, PALAKKAD DATED 02/07/2008. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // Rs/ M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 34678 OF 2007 ------------------------------------------ Dated this the 8th day of July, 2008 JUDGMENT Petitioners are daughter and mother of K.K. Gopinathan Nair, who is not heard of. Gopinathan Nair is the the first respondent. Third respondent is the brother of the first petitioner. Second respondent instituted O.S 796 of 2000 claiming maintenance from first respondent, contending that she is the legally wedded wife of the first respondent. That suit was decreed exparte under Ext.P6 decree dated 29.11.2003. E.P. 433 of 2006 was filed by second respondent to execute the decree. At the instance of second respondent in the execution petition 4th respondent, Food Corporation of India, was directed to deposit the retirement benefits due to the first respondent before the executing court. The amount was deposited. Meanwhile petitioners filed POP. 220 of 2004 before Sub Court, Palakkad, a suit instituted as an indigent person seeking a decree for declaration that third respondent is not the legally wedded wife of first respondent and she is not entitled to get any WPC34678/07 2 maintenance charged in the property. When second respondent contended that it is a matter which it to be decided by the Family Court, suit was referred to Family Court, Palakkad. But before the Family Court she took a contrary stand. Subsequent to the filing of writ petition upholding the contentions raised by second respondent, Family Court sent the suit back to civil court finding that it is not a dispute which is to be settled by the Family Court. Writ petition was amended seeking a direction to Sub Court, Palakkad to consider and pass orders in the application for injunction and also the application for advancement of the application restraining second respondent from withdrawing the amount. 2. The learned counsel appearing for petitioners submitted that petitioners are now pressing only the said reliefs. Learned counsel appearing for second respondent opposed the prayer contending that only second respondent is entitled to the amount deposited by third respondent before the executing court and under the decree second respondent is entitled to withdraw the same. Learned counsel appearing for petitioner submitted that before disposing the application for injunction, WPC34678/07 3 executing court may not disburse the amount to second respondent and if the money is allowed to be withdrawn petitioners cannot realize the amount later even if they are to succeed in the suit. Learned counsel appearing for second respondent submitted that eventhough a decree for maintenance was passed in 2003, second respondent could not realize any amount and she is finding difficulty to live and in such circumstances executing court may not be restrained from disbursing the amount and in any case part of the amount may allowed to be withdrawn. 3. When the writ petition was admitted on 23.11.2007, an order was issued directing executing court not to disburse the amount for a period of six weeks. That order was being extended from time to time. The specific case of petitioners is that second respondent is not the legally wedded wife of first respondent and Ext.P6 decree was obtained fraudulently at the time after first respondent was missing. In such circumstances, before allowing second respondent to withdraw the amount, learned Sub Judge has to consider whether petitioners, the plaintiffs in POP. 1 of 2008 are entitled to an order of injunction WPC34678/07 4 sought for in Ext.P10 petition. 4. This writ petition is disposed directing Sub Court, Palakkad to pass appropriate order, in accordance with law, in I.A. 1937 of 2008 within 30 days from the date of receipt of a copy of this judgment. Executing court shall not disburse the amount to second respondent before the final order is passed in I.A. 1937 of 2008. M. SASIDHARAN NAMBIAR, JUDGE Okb/-