JOSEKUTTY JOSEPH Vs. ANIAMMA THOMAS

JUDGEMENT

(1.) This Writ Petition which comes up before us upon a reference made by a learned Single Judge (Justice R. Basant) , raises an interesting question of law under the Family Courts Act, 1984 (hereinafter referred to as "the Act" for short). The said question is "whether the decree passed by a civil court in respect of a matter covered by clause (c) of the Explanation to Section 7 (1) of the Act could be executed by the very same civil court after a Family Court has since been established for the area".

(2.) We heard the learned counsel appearing on either side. While the petitioner would contend that with the establishment of the Family Court for the area the earlier decree passed by the civil court can be executed only by the Family Court, the respondent would argue that the civil court continues to have jurisdiction to execute the decree passed by it notwithstanding the subsequent establishment of the Family Court for the area in question. It is this controversy that falls for resolution before us.

(3.) A synoptic resume of the sequence of events culminating in the present dispute, is as follows:-The petitioner and the respondent are husband and wife. O. S. No. 675/1994 before the Subordinate Judge's Court, Pala was a suit filed by the wife against her husband and father-in-law for return of certain gold ornaments and other articles in specie or in the alternative, for their value. On 5-6-1996 the trial court decreed the suit for a sum of Rs. 1,39,000/- with 12% interest. The decree holder/wife filed an execution petition as E. P. No. 19/1997 before the Court which passed the decree, for execution of the decree. While so, the judgment-debtor/defendants preferred an appeal before this Court as A. S. 67/1997. The said appeal was admitted and all further proceedings in the E. P. were stayed by this Court. While the E. P. was thus pending before the civil court, a Family Court was establishment at Kottayam with effect from 19-9-1998 and the territorial limits of that Family Court included the local limits of the Sub Court, Pala as well. On 2-2-2005 this Court finally disposed of the appeal A. S. 67/1997 modifying the decree and directing realisation of a sum of Rs. 1,20,000/- with 6% interest. After the disposal of the appeal, the E. P. was revived. On 25-10-2005 the decree-holder wife filed Ext. P1 statement before the executing civil court (Sub Court, Pala) to the effect that the total amount due under the decree as modified in appeal, was Rs. 1,61,907. 00. On 26-10-2005 the executing civil court, after hearing both sides, passed Ext. P2 order directing the judgment-debtor to pay the above amount on or before 31-1-2006. On 14-12-2005 the petitioner/husband filed this Writ Petition under Arts. 226 and 227 of the Constitution of India for a writ of certiorari calling for the records leading to Ext. P2 order and quash the same as illegal. The main ground taken is that after the establishment of the Family court for the area, the civil court has no jurisdiction to execute the decree and that the expression "proceedings" in Section 7 (1) of the Act includes proceedings in execution of the decree and therefore with the establishment of the Family Court in that are, the E. P. which was pending before the civil court would stand transferred to the Family Court with effect from 19-9-1998 as enjoined by Section 8 (c) (i) of the Act and thereafter the Family Court alone could have dealt with the said E. P.