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 24TH MAY 2011 / 3RD JYAISHTA 1933 Mat.Appeal.No. 237 of 2011() ---------------------------- AGAINST THE ORDER DATED 07/01/2011 IN EA.91/09,E.P.64/2008 IN OP.970/2004 of FAMILY COURT,ERNAKULAM .................... PETITIONER: APPELLANT/CLAIM PETITIONER ----------------------------------------- YAMUNA S.EASWAR, W/O.RAVEENDRAN, AGED 47 YEARS, RESIDING AT "YAMUNA", NEAR DEVI NURSING HOME, NADAMA VILLAGE, KANAYANNUR TALUK, TRIPUNITHURA, PIN - 682 301, ERNAKULAM DISTRICT. BY ADV. SRI.P.V.JYOTHI PRASAD SRI.P.MURALEEDHARAN RESPONDENTS: DECREE HOLDERS/JUDGEMENT DEBTOR ---------------------------------------------- 1. SINITHA, AGED 35 YEARS, D/O.SASIDHARAN, MATTATHIPARAMBIL HOUSE, POONITHURA P.O., CHAMBAKKARA, KOCHI - 682 317. 2. SRUTHI, AGED 13 YEARS, D/O.SINITHA, -DO- PIN - 682 317. 3. MURALI C.K., S/O.LATE KUTTAPPAN, AGED 44 YEARS, CHOOLAKKAL HOUSE, KANAYANNUR TALUK, MULAVUKAD VILLAGE, MULAVUKAD P.O., TOWER LANE, ERNAKULAM, PIN - 682 504. ADV. SRI.P.UNNIKRISHNAN FOR R3 SRI.SUBAL J.PAUL FOR R1-2 SMT.SHEEBA THOMAS FOR R1-2 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO: 790/11 IN MAT. APPEAL. NO. 237 OF 2011 CLOSED. SD/- K.M.JOSEPH, JUDGE SD/- M.L.JOSEPH FRANCIS, JUDGE 24.5.2011 // TRUE COPY// APPENDIX APPELLANT'S ANNEXURES : NIL RESPONDENT'S ANNEXURES: ANNX-R3(a) : TRUE PHOTOCOPY OF E.A.NO.47/2011 IN E.P. NO.64 OF 2008 IN O.P. NO.970/2004 IN THE FILE OF FAMILY COURT, ERNAKULAM. ANNEX-R3(b) : TRUE PHOTOCOPY OF REGISTER WILL NO.162/111/06 DT.16.6.2006 OF SUB REGISTRAR OFFICE, TRIPUNITHURA. ANNEX-R3(c) : TRUE PHOTOCOPIES OF PLAINT, JUDGMENT AND ORDER IN O.S.NO.100/2008 OF SUB COURT, ERNAKULAM. // TRUE COPY// PA TO JUDGE K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.Appeal No.237 of 2011 C - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of May, 2011 JUDGMENT K.M. Joseph J., The Mat. Appeal is filed against the order passed in E.A. No.91 of 2009 in E.P. No.64 of 2008 in O.P. No. 970 of 2004 on the file of the Family Court, Ernakulam. The appellant is the claim petitioner in the said E.A. The said E.A. was filed under Order 21 Rule 58 and Section 151 of the Civil Procedure Code. 2. The case of the appellant is as follows. The third respondent is the brother of the appellant. The property was sought to be sold in execution of the decree in O.P. No.970 of 2004 obtained by the first and second respondents. The decree reads as follows: “In the result, the petition is allowed, that the respondents are directed to return the gold ornaments weighing 25 sovereigns or its value amounting to Rs.1,15,600/- to the first Mat. Appeal No.237 of 2011 :2: petitioner. They are also directed to return the articles described in the petition B schedule or its value amounting to Rs.11,275/- to the first petitioner. The first respondent is further directed to pay a sum of Rs.9,500/- to the first petitioner towards delivery expenses. The first respondent is directed to pay past maintenance to the first petitioner at the rate of Rs.1,000/- per month and to the second petitioner at the rate of Rs.500/- per month from 13.4.2002 till 7.9.2004. He is also directed to pay future maintenance at the same rate from 7.9.2004. The respondents are also directed to pay costs of the petitioners”. 2. According to the appellant, her mother - Ammukutty Amma expired on 4.11.2007. Under the registered will executed by her mother, appellant obtained an extent of 5 cents of land in re- survey No.21/3. According to the appellant, the decree holder and the judgment debtor have no possession over the property of the claim petition. The claim petitioner obtained another interest and possession over the property long prior to the date of the attachment and proclamation. Mat. Appeal No.237 of 2011 :3: 3. The first respondent filed a counter affidavit. She has stated that the testator was well aware of the liability as per O.P. No. 970 of 2004 and that the contention of the appellant that she came to know about the sale only on 24.9.2009 is absolutely false. 4. The Court below took the view that the mother of the appellant is one of the judgment debtors in O.P. No. 970 of 2004 and the legatee under the will gets the property subject to all the liabilities of the testator. In such circumstances, it was held that the property claimed by the appellant cannot be excluded to realize the decree amount in O.P. No. 970 of 2004 and the point for consideration was answered against the appellant. 5. During the pendency of this appeal, there is no dispute between the parties that the entire amount for which the E.P. No. 64 of 2008 was filed has been deposited and therefore it is not disputed by the learned counsel for respondents 1 and 2 that the E.P. stands satisfied. The liability under the decree which exist is as against the third respondent. There is no dispute that Ammukutty Amma was the second respondent in O.P. No. 790 of 2004. Mat. Appeal No.237 of 2011 :4: 6. We got a report from the Court below. It is stated that the acknowledgment cards with signatures of Smt.Ammukutty Amma and Sri.Murali, respondents in O.P. No.970 of 2004, were received on 22.11.2004 and the service was completed on 22.11.2004. 7. However there is no dispute that the Ammukutty Amma died on 24.11.2007 and O.P. No. 970 of 2004 was finally disposed on 28.2.2008. Learned counsel for respondents 1 and 2 submits that respondents 1 and 2 have no objection in the impugned order being set aside, in view of the fact that the amount due under the E.P. has been satisfied by the deposit of the same by the parties. 8. In such circumstances, we set aside the impugned order and allow the claim petition. The Mat. Appeal is disposed of as above. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/