NARAYANAN NAMBOODIRI Vs. SARASWATHY

JUDGEMENT

(1.) Respondents 1 and 2 had initiated proceedings for maintenance before the Family Court against the 3rd respondent herein, their husband/father. It is unnecessary to advert to the details and sequence of events in that litigation. Suffice it to say that the Family Court ultimately allowed the said claim in O. P. No. 761/99 directing payment of maintenance at the rate of Rs. 1,000/- and 750/- per mensem respectively to respondents 1 and 2 creating a charge on the property. Respondents 1 and 2 sought to put that order into execution and filed E. P. No. 42/2000. In E. P. No. 42/2000, the appellant herein filed E. A. No. 113/2001 under Order 21, Rule 58 contending that the property is not liable to be proceeded with in execution, as he has right, title and interest over the property to the exclusion of the 3rd respondent.

(2.) When that E. A. came up for consideration before the Family Court, the Family Court by the impugned order held that the claim petition is not maintainable. We extract the order of the Family Court below.

(3.) The learned counsel for the appellant submits that the Court below had grossly erred in appreciating the dictum in Joseph v. Marium Thomas, 2006 1 KerLT 894. According to the learned counsel for the appellant, the dictum in that case is not that the order/decree of a Family Court cannot be executed,'by the Family Court. The dictum is not that at a claim by a third party raised in the course of execution of the decree cannot be considered and decided by the Family Court. The Family Court grossly erred in construing the dictum in 2006 (1) KLT 894 : (AIR 2006 Ker 212) and in concluding that a claim petition by a stranger/non party under Order 21 Rule 58, is not maintainable before the Family Court, contends counsel.