IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 OP (FC).No. 1911 of 2011(R) --------------------------- AGAINST THE ORDER IN I.A.1338/2011 IN OP.1292/2009 of FAMILY COURT,TRIVANDRUM .................... PETITIONERS ------------------------------- 1. VINOD.R., T.C.37/936, THUNDAVILAKKATHU VEEDU, INSIDE KIZHAKKEKOTTA, THIRUVANANTHAPURAM. 2. PREMAKUMARI.P., TC 37/936, THUNDAVILAKKATHU VEEDU, INSIDE KIZHAKKEKOTTA, THIRUVANANTHAPURAM. 3. RAJASEKHARAN NAIR. T.C.37/936, THUNDAVILAKKATHU VEEDU, INSIDE KIZHAKKEKOTTA, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): --------------- 1. ARCHANA SUKU, BELL AIR HOUSE, TC 28/1456, SRA-5 SREEKANTESHWARAM, FORT, THIRUVANANTHAPURAM.695 023. 2. BITHUL KRISHNA, S/O. ARCHANA SUKU, BELL AIR HOUSE, TC 28/1456, SRA-5, SREEKANTESHWARAM, FORT, THIRUVANANTHAPURAM..695 023. 3. THE SUB-REGISTRAR, SUB REGISTRAR OFFICE, CHALA, THIRUVANANTHAPURAM..695 001. ADV. SRI.JAMES KURIAN FOR R1 GOVT.PLEADER SRI.C.M.KAMMAPPU. THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 30/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(F.C.) No.1911/2011 A P P E N D I X Petitioner's Exhibits : Ext.P1 : TRUE COPY OF NOTICE DATED 30.9.2009. Ext.P2 : TRUE COPY OF O.P.NO.1292 OF 2009 PENDING BEFORE THE FAMILY COURT, TRIVANDRUM. Ext.P3 : TRUE COPY OF I.A.2423/2009 IN O.P.NO.1292/2009 PENDING BEFORE THE FAMILY COURT, TRIVANDRUM. Ext.P4 : TRUE COPY OF THE NOTICE DATED 18.12.2009 RECEIVED BY THE FIRST PETITIONER IN RESPECT OF THE O.P.NO.1292/2009 PENDING BEFORE THE FAMILY COURT, TRIVANDRUM. Ext.P5 : TRUE COPY OF THE SHOW CAUSE NOTICE DATED 18.12.2009 RECEIVED BY THE FIRST PETITIONER IN RESPECT OF THE ATTACHMENT APPLICATION. EXT.P6 : TRUE COPY OF THE ATTACHMENT BEFORE JUDGMENT WITH ORDER TO CALL FOR SECURITY FOR FULFILMENT OF DECREE (O.XXXVIII.R.5) DATED 18.12.2009 PASSED BY THE FAMILY COURT, TRIVANDRUM. EXT.P7 : TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 31.12.2009. EXT.P7(A) : TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED 30.3.2011. EXT.P8 : TRUE COPY OF I.A.1338/2011 IN O.P.NO.1292/2009 FILED BY THE PETITIONERS. EXT.P9 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY RESPONDENT IN I.A.1338/2011 OF THE FAMILY COURT, TRIVANDRUM. EXT.P10 : TRUE COPY OF THE ORDER DATED 28.5.2011 IN I.A.1338 OF 2011 IN O.P.NO.1292 OF 2009 OF FAMILY COURT, TRIVANDRUM. TGS (TRUE COPY) P.S. TO JUDGE. K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- O.P.(F.C.) No.1911 of 2011 ----------------------------------------------- Dated 30th June, 2011. J U D G M E N T Joseph, J. This Original Petition is filed, seeking a direction to set aside Ext.P10 order passed in I.A.1338/2011 on the file of the Family Court, Thiruvananthapuram. 2. Briefly put the case of the petitioners is as follows: Petitioners are respondents 1 to 3 in O.P.1292/2009 on the file of the Family Court, Thiruvananthapuram. The first respondent instituted the said Original Petition, seeking maintenance for herself and the second respondent. She claimed various amounts allegedly due to her by way of gold ornaments and dowry. She also filed an application for attachment of the properties belonging to the petitioners. Notice was issued by the Family Court, which was received by the petitioners on 22.12.2009. They were directed to answer the allegations and furnish security for an amount of Rs.10 lakhs on or before 11.1.2010. The petitioners 1 and 3 are business men in the city of Thiruvanthapuram and they own various items of properties and the properties stand mortgaged O.P.(FC) 1911/2011 2 to various financial institutions, from whom financial assistance is obtained. On account of the order of attachment passed, the financial institutions sought return of loans. The petitioners filed W.P.(C) 636/2010, challenging the encumbrances marked in Ext.P7 by the Sub Registrar. They also filed an application before the Family Court, for lifting the order of attachment. It is the said application, which has been rejected. 3. We went through the order. Essentially, it is interalia stated that it is true that conditional attachment was made without hearing the respondent in I.A.2423/09. It is noted that 'A' relief sought in the Original Petition is for maintenance, both past and future and 'B' relief is for recovery of gold ornaments. It is stated that if the entire claims are allowed, the amount will be more than Rs.15,00,000/- and therefore, the claim for attachment obtained for Rs.10,00,000/- is factually incorrect. Thereafter, it was stated as follows : “The averments in paragraph 3 and 4 would make it clear that the present petitioners who are the father and mother of the husband are also liable if the petition is allowed. It is also brought out in evidence that the petition for lifting the attachment in respect of the O.P.(FC) 1911/2011 3 petition D schedule properties are also filed before the Hon'ble High Court. This aspect has not been mentioned either in the petition or in the affidavit filed by the petitioners. Therefore, it is clear that the petitioners have not approached before this court by suppressing material facts and on that count also the petitioners are not entitled to get the attachment lifted.” 4. We heard learned counsel for the petitioners and learned counsel for respondents 1 and 2. 5. Learned counsel for the petitioners would point out that in fact the petitioners are prepared to furnish security in the form of bank guarantee. We notice that essentially two reasons are given; firstly, that the petitioners 2 and 3 are father and mother of the husband of the first respondent and are also liable if the petition is allowed. Secondly, it is stated that filing of the application to lift attachment of 'D' schedule property was not mentioned in the petition or affidavit. 6. It is true that an Original Petition was filed challenging the endorsement about the attachment. Learned counsel for the petitioners submits that it is not really a O.P.(FC) 1911/2011 4 material fact and we must notice that in this case, petitioners are prepared to furnish proper security to the satisfaction of the court. If that be so, we feel that the entire matter should be reconsidered. Accordingly, we set aside Ext.P10 and direct the Family Court to take up I.A.1338/2011 for consideration and pass orders on the same. The parties are directed to appear before the Family Court on 7.7.2011 and the Family Court will consider the case and pass orders within a period of two weeks from 7.7.2011 in I.A.1338/2011. The Original Petition (Family Court) is disposed of as above. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy)