VIJAYAMMA Vs. SADASIVAN PILLAI

JUDGEMENT

(1.) The second respondent filed O. P. (HMA) 114/2000 before the Family Court, Thiruvalla under S.9 of the Hindu Marriage Act for restitution of conjugal rights. She filed I.A. 17/2001 in the said Original Petition under S.24 of the Hindu Marriage Act seeking maintenance pendente lite and expense of the proceedings. Eventually, that application was allowed in 2001 permitting the second respondent herein to realize an amount of Rs. 22,200/- as on that date. When the first respondent refused to pay the said amount, E.P. 15/2003 was filed and certain movable properties said to be belonging to the first respondent was attached on 10/11/2004 from the house of the first respondent. The said movables were released to the custody of the petitioner herein on an undertaking to produce the same as and when directed by the Family Court. The petitioner herein claims to be the owner in possession of ten cents of property comprised in Sy. No. 537/10/2 of Kozhencherry Village wherein she is stated to have built a residential house and she is residing with her family in the aforesaid house. The first respondent is none other than the brother of the petitioner's deceased husband and the husband of the second respondent. According to the petitioner, the attachment of the properties is without bona fides and actually, the movables belonged to her in which the respondents have no manner of right. She contends that though she objected to the attachment and the same was noticed by the Amin, it is not seen recorded. She therefore, filed a claim petition as E.A.37/2005 before the Family Court, Thiruvalla under O.21 R.58 inter alia contending that the properties belongs to her and seeking to lift the attachment. When the Family Court did not consider the said petition and posted the case for proclamation of sale of the attached properties, petitioner filed W.P.(C) 19085/2005 before this Court, which was eventually disposed of directing the Family Court not to take further steps without disposal of E.A.37/2005. Subsequently, the said application before the Family Court was dismissed for default. There was no appeal against the said order and thereafter, O.S. 402/2005 was filed by the petitioner before the Munsiff's Court, Pathanamthitta, under O.21 R.58(5) of the Code of Civil Procedure. I.A.1616/2005 was also filed in the said suit seeking for an injunction restraining the sale of the properties attached. Though initially, an ex parte order of injunction was granted in favour of the petitioner, on contest the same was vacated and I.A. 1616/21005 was dismissed by the Munsiffs Court, against which the petitioner preferred an appeal before the District Court as C.MA. 82/2005 before the District Court, Pathanamthitta. The said appeal was dismissed by the District Court by Ext. P1 order dated 17th October, 2006, against which the present Writ Petition is filed. Petitioner seeks to quash Ext. P1 order.

(2.) The District Court found that the fact that plaint item No. 1 immovable property belongs to the plaintiff is beyond dispute. But it was contended that the husband of the defendant who is the brother in law of the plaintiff is residing along with her in the building in plaint Item No. 1 property and the movables belong to him. It was found by the District Court that the learned Munsiff did not consider the merits of the contentions in depth in view of S.41(b) of the Specific Relief Act. The District Court also did not enter any finding on the merits of the contentions as it obviously agreed with the finding of the Munsiff's court that the bar under S.41(b) of the Specific Relief Act is attracted and no injunction could be granted. The correctness of the said decision, therefore, arises for consideration.

(3.) According to the petitioner, the District Court ought to have found that the claimant's right to adjudicate under O.21 R.58(5) is a statutory right and the court, while adjudicating the said right, has an inherent power to safeguard the interest of the parties and in such circumstances, S.41(b) of the Specific Relief Act is inapplicable in the factual situation. The respondent on the other hand, would contend that the claim petition E.A.37/2005 in E.P. 15/2003 having been dismissed by the Family Court, in the absence of any appeal therefrom, the same has become final. It is also contended that I.A.1616/2005 filed in O.S. 402/2005 before the Munsiff's Court is virtually an application for stay of execution proceedings which was rightly dismissed by the Munsiff's Court, in view of the provisions contained in S.41(b) of the Specific Relief Act. The appellate court, after reconsidering the matter in its entirety, while dismissing the appeal has also agreed with the said finding of the Munsiff's Court. It is further contended that the dismissal of the claim petition by the Family Court is for default and is not as though the claim is not entertained. The suit filed under O.21 R.58(5) itself is not maintainable. So also the interim order sought by the petitioner in the suit is not allowable since the Family Court is not inferior to that of the Munsiffs Court and hence the bar under S.41(b) of the Specific Relief Act squarely applied.