IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 Mat.Appeal.No. 338 of 2011(F) ----------------------------- E.A. 94/11 IN E.P.117/10 IN OP.625/2006 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): APPELLANT/PETITIONER IN E.A.94/2011 -------------------------------------------------- PRIYANKA.S., D/O.K.V.JAYARAJ, T.C.NO.17/2021(1) PNRA.46, DR.PAI LANE, POOJAPURA.P.O., THIRUVANANTHAPURAM. REPRESENTED BY HER POWER OF ATTORNEY HOLDER-M.PADMANABHAN NAIR T.C.NO.50/1128(1). T.M.NAGAR, KARAMANA, THIRUVANANTHAPURAM. BY ADV. SRI.MANSOOR.B.H. RESPONDENT(S): COUNTER PETITIONERS ---------------------------------- 1. K.V.JAYARAJ, S/O.K.M.VIJAYAN, ETHIKADUVEEDU, ETHIKADU DESOM, AYYANTHOL, THRISSUR. 2. P.SUNITHA, T.C.17/2021 (1), PNRA.46. DR.PAI LANE, POOJAPURA.P.O., THIRUVANANTHAPURAM. ADV. SRI.M.P.KRISHNAN NAIR FOR R1(CAVEATOR) SRI.V.B.NARAYANAN FOR CAVEATOR SRI.M.J.WILFRED DAS FOR CAVEATOR SMT.K.SONIA KURIAN FOR CAVEATOR THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 30/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- Mat.Appeal No.338 of 2011 ----------------------------------------------- Dated 30th May, 2011. J U D G M E N T Joseph, J. The appellant is the petitioner in E.A.94/2011 in E.P.117/2010 in O.P.625/06, on the file of the Family Court, Thiruvananthapuram. She is the daughter of the respondents. Her case is briefly as follows : She is studying in Ukraine for MBBS course expending Rs.30,00,000/-. One Frusha Jayaraj, who is not the legally wedded wife of the decree holder started illicit relationship with the decree holder, who is none other than the father of the obstruction petitioner. In case the decree schedule property is delivered, several valuable movables and other materials used for her education, kept in the decree schedule property will be destroyed. In case the judgment debtor is evicted from the decree schedule property, the obstruction petitioner will lose her abode and she has no other place of abode. The decree holder has agreed to transfer the decree schedule property in her name. The obstruction petitioner intends to file a petition for obtaining jenm right over M.A.338/11 2 the decree schedule property. There is no decree to evict the obstruction petitioner from the decree schedule property. It is also stated by her that as per the order in I.A.2396/2008 in O.P.1221/08, an attachment for Rs.23,00,000/- is pending. The decree holder filed objections raising various contentions. The second respondent did not file any objection. The Family Court found no merit in the application. It is found inter alia as follows : The proper provision under which the obstruction petitioner has to file petition is under Order 21 Rule 97 of the Civil Procedure Code. Even if it is considered as a petition under Order 21 Rule 97, the petition is not maintainable, according to the counsel for the first respondent. There is no husband and wife relationship between the respondents 1 and 2 and their marriage stands dissolved in 2006. It is well settled that parties to a marriage have to be construed as divorced spouses also. It is noted that no such suit has been filed to declare a Jenm right. As regards the attachment, it is stated that even if it is pending, it is not a bar in getting the property delivered in favour of the decree holder. As regards maintenance decree, it M.A.338/11 3 is stated that the first respondent has deposited Rs.7,57,000/- in full and final settlement. It is also found that the petitioner has no independent right over the decree schedule property, apart from the claim for maintenance, including marriage expenses and residence. It is found that petitioner is not residing in the property. There is no material before the court to show that any movable or educational materials have been kept at the residence situated in the decree schedule property and it is also found that petitioner has been residing with her mother, who is having residential building and 7 cents of property adjacent to the decree schedule property. 2. We heard learned counsel for the appellant and also the learned counsel for the caveator. 3. There is no dispute that a decree has been obtained by the first respondent against the second respondent for recovery of the petition schedule building. The appellant is the daughter of the respondents. The respondents are divorced since 2006. Be it a petition under Order 21 Rule 97 CPC or under Order 21 Rule 99 CPC, the applicant must establish a M.A.338/11 4 legal right in her. The petitioner has not been able to show the existence of any legal right in the property in her favour. Apart from alleging that some movables and certificates are kept in the house, the appellant has not been able to establish the said case also. It may also be true that there is an attachment of the property. The fact that there is an attachment of the property will not stand in the way of delivery of the property being effected. If there is an attachment over the property, the terms of the attachment will continue, even if the property is delivered. Moreover, according to the first respondent, he has deposited a sum of Rs.7,57,000/- in terms of the decree. Whatever that be, the fact that there is attachment will not detract from the right of the decree holder to obtain delivery. 4. We are also in agreement with the court below that even if the parties are divorced, it will not stand in the way of the Family Court having jurisdiction in the matter. Equally without merit is the contention that the first respondent has agreed to transfer his property to the appellant and therefore, the obstruction petition may be allowed. There is absolutely no M.A.338/11 5 material to establish the existence of any such agreement. Even if there is such an agreement, appellant was not able to establish how the obstruction petitioner can obstruct the delivery of the property ordered pursuant to the decree between the parties. In the above circumstances, we see no merit in the appeal. The appeal is accordingly dismissed. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.