JOSEPH Vs. MARIUM THOMAS

JUDGEMENT

(1.) This appeal is filed by a third party claimant in E.P.2/2003 in O.S.226/1993 on the file of the Family Court, Kottayam at Ettumanoor. The first respondent in the appeal obtained a decree for maintenance against the second respondent and the decree made it clear that the claim for maintenance will be a charge on the plaint schedule property. The suit was filed as early as on 8-12-1993 before the Munsiff Court, Ettumanoor claiming maintenance at the rate of Rs. 750/- per month. The suit was decreed on 20-12-1995 at the rate of Rs. 500/- per month from 1-1-1994 charging the plaint schedule property for the claim for maintenance. On the date of filing of the suit itself there was a petition for attachment before judgment and a conditional attachment was ordered. In the decree passed on 20-12-1995 the Munsiff Court granted a charge for the plaint claim over the plaint schedule property. On 29-2-1996 the second respondent sold the property in favour of the appellant showing a consideration of Rs. 1 lakh. Subsequently E.P.49/1997 was filed for realisation of the decree debt by the first respondent against the second respondent. On 26-11-1998 the petitioner filed E.A.85/98 claiming that the property is not liable to be sold as he is a bonafide purchaser for consideration and he was not bound by the decree. That application was dismissed on 9-4-1999 holding that the transfer in favour of the petitioner was subject to the decree against the second respondent. Challenging that order the petitioner filed CRP.1379/99 before this Court and that was dismissed by order dated 27-7-1999. It was held by this Court that the transfer in favour of the appellant was hit by principle of lis pendens. Subsequently the appellant filed E.R39/99 offering to deposit Rs. 25,000/-and get the property released from the liability under the decree. That petition was also dismissed by the Munsiff Court, Ettumanoor. Against that order petitioner filed CRP.2583/1999 which was also dismissed following the order in CRP.1379/99.

(2.) While the earlier E.P. was pending before the Munsiff Court a contention was raised that Family Court is established and only the Family Court has jurisdiction to execute the decree. Thereafter fresh E.P. was filed before the Family Court and the earlier E.P. was dismissed. Before the Family Court the appellant filed E.A.42/03 which was also dismissed by the order under challenge.

(3.) In this appeal the learned Counsel appearing for the appellant contended that the court below was not correct in following the decisions in the earlier CRPs as the proceedings which were the subject matter of the two revisions were proceedings without jurisdiction and therefore orders in the CRPs were also not binding on the appellant. It is also argued that the very decree obtained by the first respondent against the second respondent is a collusive decree and the appellant was cheated by both the husband and wife. Thirdly it is contended that the suit itself is for past maintenance and the decree for future maintenance was not claimed for and the decree was inexecutable with respect to the claim for future maintenance. It is also argued that the interlocutory application in the earlier E.Ps have no legs to stand after the disposal of the E.P.