VIJAYAMMA Vs. SANTHAKUMARI AMMA

JUDGEMENT

(1.) This appeal is directed against the common order of the Family Court, Thiruvalla dated 12.9.2007 in EA Nos. 35 of 2007, 36 of 2007and 100 of 2007 in EP No.15 of 2003 in OP No. 114 of 2000. The appellant is the claimant.

(2.) The first respondent had obtained an order of maintenance from the Family Court, Thiruvalla in OP No.114 of 2000 against her husband, the second respondent. According to the appellant, the first respondent wrongly attached the immovable properties belonging to her. The claim petition was originally dismissed for default. The appellant filed a civil suit, O.S. No.402 of 2005 before the Munsiff's Court, Pathanamthitta under O.21 R.58(5) CPC. The said suit is pending adjudication. An interim order of injunction was passed by the Munsiff's Court which was later vacated for the reason that the Munsiff's Court being an inferior court to the Family Court, there is express bar under S.41(b) of the Specific Relief Act. CMA No. 82 of 2005 was also dismissed, confirming the decision of the Munsiff's Court. This Court by judgment in WP (C) No. 32639 of 2006 upheld the decision of the Munsiff's Court and observed that instead of filing a civil suit before the Munsiff's Court, the appellant ought to have filed a restoration application before the Family Court, Thiruvalla. Thereafter, the appellant filed a restoration application, an application for condoning the delay in filing the application for restoration as well as an application for setting aside the attachment. Subsequently, the appellant filed EA No. 168 of 2007 wherein she has prayed for withdrawal of the claim petition, EA No. 37 of 2005 without prejudice to her right to file fresh claim petition.

(3.) The applications were opposed by the decree holder inter alia contending that the application to condone the delay in filing the restoration application is not maintainable for the reason that S.5 of the Limitation Act, 1963 is not applicable to execution proceedings. The court below relied on the decision of the Supreme Court reported in Damodaran Pillai v. South Indian Bank Ltd., 2005 (4) KLT 192 (SC) : 2005 KHC 1333 : ILR 2005 (4) Ker. 263 : 2005 (7) SCC 300 : AIR 2005 SC 3460 : 2005 (3) KLJ 608 wherein it is held that an application under S.5 of the Limitation Act is not maintainable in a proceeding arising under O.21 of the Code. On merits also, the court below found that there are no valid reasons for not filing the restoration application in time. The court below also found that no oral or documentary evidence was adduced by the appellant in support of her contentions that the attached property belonged to her. The court below further found that no grounds are made out for setting aside the attachment.