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2008 DIGILAW 143 (KER)

Vijayamma v. Santhakumari Amma @ Santha S. Pillai

2008-02-20

HARUN-UL-RASHID, KURIAN JOSEPH

body2008
Judgment :- Harun-Ul-Rashid, J. This appeal is directed against the common order of the Family Court, Thiruvalla dated 19.2007 in E.A. Nos. 35 of 2007, 36 of 2007and 100 of 2007 in E.P. No.15 of 2003 in O.P. 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 O.P. 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 Munsiffs Court, Pathanamthitta under Order 21 Rule 58(5) C.P.C. The said suit is pending adjudication. An interim order of injunction was passed by the Munsiffs Court which was later vacated for the reason that the Munsiffs Court being an inferior court to the Family Court, there is express bar under Section 41(b) of the Specific Relief Act. C.M.A. No.82 of 2005 was also dismissed, confirming the decision of the Munsiffs Court. This Court by judgment in W.P.(C) No.32639 of 2006 upheld the decision of the Munsiffs Court and observed that instead of filing a civil suit before the Munsiffs 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 E.A. No.168 of 2007 wherein she has prayed for withdrawal of the claim petition, E.A. 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 Section 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) K.L.T. 192 (SC) wherein it is held that an application under Section 5 of the Limitation Act is not maintainable in a proceeding arising under Order XXI of the Code. On merits also, the court below found that there are no valid reasons for not filing the restoration application in time. 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. 4. We have gone through the decision of the Supreme Court reported in Damodaran Pillai v. South Indian Bank Ltd., 2005(4)K.L.T. 192 (SC). The Supreme Court held that the starting period of limitation for filing an application dismissed for default would be the date of the order and that the application for restoration must be filed within 30 days of the said order and not thereafter. The period of limitation has been fixed by the provisions of the Code and not in terms of the second schedule appended to the section of the Limitation Act. The Supreme Court also held that for the purpose of condonation of delay in the absence of applicability of Section 5 of the Limitation Act, the court cannot invoke its inherent power. In the light of the position discussed above, the application for restoration and the application for setting aside the attachment are hopelessly barred by limitation. So long as there is no provision for condoning the delay in filing the restoration application, all the three applications filed by the appellant/petitioner are without any merit and, therefore, liable to be dismissed. 5. We have also noted that the appellant had not filed any objection in time against the order effecting attachment. E.A. No.35 of 2007 was filed long after the attachment was effected and the same was also dismissed for default on 7.2005. The attachment was effected on 10.11.2004. The movables attached were entrusted to the appellant by the Amin at the time of effecting the attachment on the undertaking given by the appellant to produce them before the court as and when required. At that time also, she had no case that the movables belonged to her. It was only later that she filed E.A. No.35 of 2007 stating that the movables were attached from her house and that they belonged exclusively to her. At that time also, she had no case that the movables belonged to her. It was only later that she filed E.A. No.35 of 2007 stating that the movables were attached from her house and that they belonged exclusively to her. A Division Bench of this Court in the decision reported in Vijayamma v. Sadasivan Pillai, 2007(2)K.L.T. 567 has held that no injunction can be granted against proceedings pending before the Family Court by a Munsiffs Court and that the provisions contained in Section 41 (b) of the Specific Relief Act will apply as well. In the result, we find that no reasons are made out to interfere with the order passed by the court below. The Matrimonial Appeal is accordingly dismissed.