VAMADEVAN Vs. SHEELA

JUDGEMENT

(1.) Original petition is filed challenging Ext.P7 and seeking for a declaration that the Family Court Nedumangad has no jurisdiction to execute the decree in OP No.1005/ 2003 against the petitioner. The short facts involved would indicate that the respondent herein obtained a decree in OP No.1005/2003. Petitioner herein is the 4th judgment debtor. EP No.52/2007 came to be filed before the Family Court. The petitioner entered appearance and filed EA 124/2008 contending that decree is not executable against him as there was no decree against him and he was not a party in OP No.1005/2003. Earlier the decree holder filed EP No. 174/2003 before the Family Court, Thiruvananthapuram which was renumbered as EP No. 103/2005 and thereafter transferred to the Family Court, Nedumangad. It is stated that during the pendency of OP No.1005/2003, an arrest warrant was issued against the respondent's husband. The petitioner being a relative executed a bond before the Family Court on 7/7/2003 for Rs. 1 lakh with 2 solvent sureties for releasing her husband. Ext.P1 is the affidavit executed by the petitioner. On 10/7/2003, the petitioner appeared along with the other sureties with tax receipts and the Family Court directed furnishing of proper security as envisaged under the Code of Civil Procedure. According to the petitioner, he did not furnish any security in the prescribed format. The respondent's husband thereafter appeared on several days and the Family Court granted him time to furnish proper security for the claim in the original petition. Later, the respondent's husband was declared ex parte and a decree was passed. While the execution petition was pending an application was filed to implaed the petitioner herein as the 4th judgment debtor which was dismissed as not pressed. Thereafter EP No.52/2007 was filed before the Family Court against the petitioner and others in order to execute the decree. Ext.P4 is the Execution Petition.

(2.) It is in the said background the petitioner after having entered appearance filed an application seeking to dismiss the execution petition filed against him. The Family Court passed Ext.P7 order observing that the petitioner being a surety, he is liable to pay the amount covered by the decree and his objections were overruled and the decree holder was permitted to take steps for realising the amount from the petitioner. It is challenging the above order dated 19/9/2015 in EA 124/2008, that this original petition is filed.

(3.) Learned counsel for the petitioner submits that he is neither a judgment debtor nor a surety to the transaction. He had only given a bond for an amount of Rs. 1 lakh and that too for the purpose of releasing the respondent's husband when he was arrested before judgment. Thereafter, respondent's husband entered appearance and ultimately he was declared ex parte and a decree had been passed. There is no decree against the petitioner and therefore merely for the reason that he had given a bond for releasing her husband at the time when he was arrested, does not mean that he becomes liable for the entire decree debt.