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2021 DIGILAW 31 (KER)

Anoop Vijay v. Arunima P. T. , D/O. Thankappan

2021-01-13

BECHU KURIAN THOMAS, S.V.BHATTI

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JUDGMENT : Bechu Kurian Thomas, J. Petitioner is the judgment debtor and is restrained from travelling abroad by an order of the Family Court in execution proceedings. He sought to wriggle out of the restraint order alleging lack of jurisdiction of the Court to issue the restraint order. Court directed withdrawal of the restraint order on condition that petitioner deposits or furnishes security for the amounts due under the consent decree. In an attempt to fly out of the country, petitioner challenges the order of the Family Court directing him to furnish security for the consent decree. 2. Petitioner married the respondent on 20.08.2008 and a child was born on 06.07.2009. Disputes arose and a divorce petition was filed by the respondent wife as O.P.No.251/2014 before the Family Court, Muvattupuzha. Claim for return of money and gold ornaments was initiated as O.P.No.345/2014 before the same court. Finally, a compromise agreement was signed between the parties as per which the petitioner agreed to pay Rs.10,75,000/-and 58 sovereigns of gold apart from agreeing to hand over the gold kept in the Bank locker to the wife. Reciprocal obligations were also agreed to by the wife. 3. Even though it is alleged that the parties did not comply with the compromise agreement, a judgment was passed in divorce O.P.No.251/2014 on 18.01.2016 as stipulated in the compromise agreement, dissolving the marriage. 4. Since the monetary terms in the agreement were not complied with by the petitioner, the wife filed E.P.No.12/2016. However, the said execution petition was dismissed observing that the petitioner-judgment debtor was not residing within the jurisdiction of the Family Court, Muvattupuzha. 5. Thereafter, another execution petition as E.P.No.32/2017 was filed by the wife seeking to execute the terms of the compromise agreement, alleging that the petitioner-judgment debtor was taking steps to leave the country to defeat the terms of the agreement. 6. The Family Court, Muvattupuzha issued an arrest warrant in E.P.No.32/2017 in O.P.No.251/2014 against the petitioner. It is the claim of the original petitioner herein that, due to the arrest warrant, he could not go back to UAE and hence he filed a petition as E.A.No.07/2020 in E.P.No.32/2017, seeking an order to the Passport Officer, Kochi to permit the original petitioner to make international travel for obtaining a job. It is the claim of the original petitioner herein that, due to the arrest warrant, he could not go back to UAE and hence he filed a petition as E.A.No.07/2020 in E.P.No.32/2017, seeking an order to the Passport Officer, Kochi to permit the original petitioner to make international travel for obtaining a job. The said application was allowed by the Family Court by order dated 18.02.2020 on condition that the petitioner-judgment debtor furnishes security for the amount of Rs.10,75,000/-and for 58 sovereigns of gold ornaments. The aforesaid order is produced as Ext.P8 and is impugned in this original petition. 7. The main ground of challenge in the original petition is that once it was held that execution proceedings was not maintainable in the Family Court at Muvattupuzha, the said court could not have subsequently issued an arrest warrant in a second execution petition. It was also contended that when on the one hand the court stated that it had no jurisdiction, it could neither have issued an arrest warrant nor imposed any condition in the nature of directing furnishing of security for permitting the petitioner to travel abroad. Petitioner also referred to the judgment in O.P.(F.C) No.681/2019 of this Court, between the same parties herein, reported as Arunima v. Anoop [ 2020 (2) KLT 172 ], where the order of the Family Court, Muvattupuzha, holding that it did not have jurisdiction to deal with the execution petition filed by the respondent, since the husband was residing outside the jurisdiction of the said court was upheld. He pointed out that the said decision is binding. It was also contended that, due to the financial position of the petitioner, he is unable to meet the commitments for payment of maintenance ordered in M.C.No.14/2013 or those agreed upon in the compromise agreement in O.P.No.251/2014. Petitioner who argued as a party in person further submitted that, when the court had already held that it had no jurisdiction to deal with the execution petition, it could not have passed an order imposing conditions for permitting his travel abroad. 8. The respondent, on the other hand contended that the petitioner is hell bent upon trying to avoid paying any amount as agreed to, and is dragging the hapless respondent, repeatedly to different courts, in spite of agreeing in the compromise agreement to pay the amounts due to her. 8. The respondent, on the other hand contended that the petitioner is hell bent upon trying to avoid paying any amount as agreed to, and is dragging the hapless respondent, repeatedly to different courts, in spite of agreeing in the compromise agreement to pay the amounts due to her. It was argued that, neither the maintenance amount nor the amount of Rs.10,75,000/-or even the gold ornaments have been given to the respondent, who is struggling to make her both ends meet, especially without a job for herself. The learned counsel for the respondent Sri.Vipin Narayan further submitted that the Family Court which passed the decree in O.P.No.251/2014, certainly has the jurisdiction to deal with the execution petition and the contention to the contrary was not legally sustainable. He also submitted that the judgment in O.P.(F.C) No.681/2019 (reported as Arunima v. Anoop [ 2020 (2) KLT 172 ]), is per incuriam since the said judgment had not taken note of Section 20 of the Family Courts Act which gives overriding jurisdiction to the Family Courts Act even over the provisions of the CPC. He contended that the finding of the Family Court that it had no jurisdiction to execute the decree since the husband against whom the decree is sought to be executed is residing outside the jurisdiction of the court, was not legally proper. Even otherwise, the learned counsel submitted that it was the petitioner who moved the Family Court to permit him to travel abroad and it was in that petition that Ext.P8 order was passed and hence when the petitioner himself acquiesced into the jurisdiction of the Family Court, Muvattupuzha, it was within the court's authority to pass the order in the nature of Ext.P8. 9. We have considered the rival contentions. Sri.Anoop Vijay, who argued in person repeatedly submitted that the Family Court, Muvattupuzha has no jurisdiction over him and hence it could not have issued an arrest warrant in E.P.No.32/2017 due to the jurisdictional limitations. According to him, the court contradicted its own order by directing furnishing of security since in the earlier execution petition the court had found that it had no jurisdiction which was affirmed by this Court. 10. According to him, the court contradicted its own order by directing furnishing of security since in the earlier execution petition the court had found that it had no jurisdiction which was affirmed by this Court. 10. On an appreciation of the facts arising in this case, We find that there is an attempt on the part of the petitioner-judgment debtor, to avoid complying with the obligations incurred by him in the compromise agreement in O.P.No.251/2014 of the Family Court, Muvattupuzha. All what Ext.P8 ordered was to furnish security for the decree in O.P.No.251/2014 for the purpose of enabling him to travel abroad as he desires. We are of the view that the Family Court, Muvattupuzha was certainly within its jurisdiction in passing such orders in the course of execution of the decree for more reasons than one. 11. The execution petition was filed by the decree holder wife before the Family Court, Muvattupuzha, which court had passed the original decree. In the order dated 01.06.2019, the court had directed the decree holder to file an application for transferring the decree to the court within whose jurisdiction the judgment debtor is residing. Until such a transfer of the execution petition was ordered, the family Court Muvattupuzha was in seizin of the case and it was certainly within the jurisdiction of the Family Court, Muvattupuzha, as a court which originally passed the decree to pass appropriate orders in execution of the decree. 12. At this juncture, it may not be out of context to mention that a decree is to be executed by the court which passed it or by the court to which it is sent for execution. Section 18(3) of the Family Courts Act 1984 (for short ‘the Act’) states that a decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary civil court to which it is sent for execution. On a reading of Section 18(3) of the Act, it can be seen that the Family Court which passed the decree or order shall have jurisdiction, until it is sent to another court for execution. 13. However, in the decision reported in Arunima's case (supra) a judgment between the same parties herein, it was held that Section 18(3) of the Act is subject to Section 39(1)(a) and (4) of the CPC. 13. However, in the decision reported in Arunima's case (supra) a judgment between the same parties herein, it was held that Section 18(3) of the Act is subject to Section 39(1)(a) and (4) of the CPC. It was also held that the Family Court which passed the decree, cannot execute a decree personally against the judgment debtor, who actually and voluntarily resides or personally works for gain, or carries on business within the jurisdiction of another Family Court. For a better comprehension the following observations in the said judgment are relevant. 7. Going by Section 39(4) of CPC, we find that the aforesaid provision was inserted, by Act 22 of 2002, with effect from 01.07.2002. Section 39(4) is a negatively couched provision, which bars the court which passed the decree, from executing a decree against any person or property, outside the local limits of its jurisdiction. It is pertinent to note that Section 18(3) of the Family Court Act, is in pari materia with Section 38 of the CPC. Section 18(3) of the Family Court Act is the verbatim reproduction of Section 38 of CPC. As per both provisions, a decree or order may be executed, either by the court, which passed it or by the Court, to which it is sent for execution. The aforesaid common provisions of both Acts are general provisions, which would confer jurisdiction to execute a decree to both the courts i.e., the court, which passed the decree and the court to which it is sent for execution. But, the jurisdiction, conferred to the court which passed the decree under Section 38, is regulated by various provisions under Section 39 of CPC. 8. It is to be borne in mind that Section 39(4) was introduced in the statute book, by way of amendment, when Section 38 of CPC was already in existence. Therefore, we hold that Section 38 of CPC is subject to Section 39(4) of the CPC. It is pertinent to note that there is no specific provision in the Family Court Act, which would stand contrary to various provisions under Section 39 of CPC. Therefore, the provisions, under Section 39 of CPC, shall apply as such to the suits and proceedings before the Family Court. It is pertinent to note that there is no specific provision in the Family Court Act, which would stand contrary to various provisions under Section 39 of CPC. Therefore, the provisions, under Section 39 of CPC, shall apply as such to the suits and proceedings before the Family Court. If Section 38 of CPC is subject to Section 39(4) of CPC, it must be held that Section 18(3) of the Family Court Act, which stands in pari materia with Section 38 of CPC is also subject to Section 39(1)(a) and (4) of the CPC and it will not override the negative couch, under Section 39(4) of CPC. In short, Section 18(3) of the Family Court Act, is subject to Section 39(1)(a) and (4) of CPC. Further, we find that the Family Court, which passed the decree, cannot execute a decree, personally, against the judgment debtor, who actually and voluntarily resides or personally works for gain, or carries on business, within the jurisdiction of another Family Court. Therefore, in such cases the decree is liable to be transferred under Section 39(i)(a) of the CPC to the Family Court, within whose jurisdiction the judgment debtor actually and voluntarily resides or carries on business, or personally works for gain. That apart, we further find that the legislative intent, behind the insertion of Section 39(4), is speedy and effective execution of the decree, notwithstanding the inconvenience, that may be caused to the decree holder, by the transfer of decree. 14. Though the aforesaid observations were rendered in a case between the same parties, we note with great respects, that the provision in Section 20 of the Act was not brought to the notice of the Court, nor was it considered in the said decision, thereby rendering the judgment in Arunima's case (supra) as per incuriam. 15. In order to properly elaborate and also appreciate how the dictum in Arunima's case (supra) is per incuriam, it is necessary to extract section 18 and S.20 of the Act as below : 18. 15. In order to properly elaborate and also appreciate how the dictum in Arunima's case (supra) is per incuriam, it is necessary to extract section 18 and S.20 of the Act as below : 18. Execution of decrees and orders.-(1) A decree or an order [other than an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], passed by a Family Court shall have the same force and effect as a decree or order of a Civil Court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the execution of decrees and orders. (2). An order passed by a Family Court under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) shall be executed in the manner prescribed for the execution of such order by that Code. (3). A decree or order may be executed either by the Family Court which passed it or by the other Family Court or ordinary Civil Court to which it is sent for execution. 20. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 16. Similarly Section 39(1)(a), (3) & (4) of CPC is also extracted as below : 39. Transfer of decree.-(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court [of competent jurisdiction],- (a). If the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or (b). xxxxxxxx (2). xxxxxxxxx [(3). For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.] [(4). Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.] 17. Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction.] 17. With the above provisions in mind, when we appreciate the scheme and the legislative purpose behind the 1984 Act, it can be seen that a new and exclusive forum for adjudication of matrimonial disputes was created. This is evident from Section 7 of the Act. Even though, the manner of execution shall be as per the provisions of CPC, the forum for execution is provided in Section 18(3). By virtue of Section 20 of the Act, the forum created under the Act shall have overriding effect over the forum mentioned in the CPC. 18. Section 20 of the Act gives the Family Court Act an overriding effect over all other laws. The overriding effect of the Act under Section 20 and the applicability of CPC made subject to the provisions of the Act, makes it abundantly clear that, the intention of legislature was to give exclusive jurisdiction to the Family Courts Act. Coupled with the aforesaid statutory provisions, is the applicability of the principle of special law prevailing over the general law. In the instant case, the Family Courts Act is a special law while the CPC is the general law. So viewed, the forum for execution created under the Family Courts Act will prevail over the forum specified under the CPC. 19. With the above principles in mind when we appreciate Section 18 of the Act, it can be understood that though the manner of executing the decree of a Family Court, is as prescribed in the CPC, the court that has to execute the decree or order is primarily the Family Court which passed the decree or order. The "other Family Court or ordinary civil court to which it is sent for execution" is secondary in nature. It arises only after an application by the decree holder to send the decree for execution is made and the Family Court which passed the decree or order, directs sending of the decree for execution to the other Court. The words "by the other Family Court or ordinary civil court" in Section 18(3) of the Act is controlled and guided by the words "to which it is sent for execution". The words "by the other Family Court or ordinary civil court" in Section 18(3) of the Act is controlled and guided by the words "to which it is sent for execution". If it is not sent, undoubtedly the jurisdiction to execute the decree will continue to vest or remain with the Family Court that passed the decree or order. Such an interpretation arises on account of the overriding effect of the Family Courts Act in Section 20 and also due to the necessity of having certainty of laws. If the court of execution is a fluctuating one, depending on wherever the judgment debtor resides, an unscrupulous judgment debtor could easily circumvent or delay execution by repeatedly shifting his place of residence. 20. It is a hard truth that in spite of stipulation of time schedule for deciding the disputes brought before the Family Court, for explicable and inexplicable reasons, the command of the Family Courts Act for timely disposal, remains on the statute book as a letter without achieving the purpose. It is often remarked that the real problem of a decree holder in a suit starts with the obtaining of a decree. If the objection of the nature raised in this case to the execution petition is accepted, we are afraid, it would make execution of a Family Court decree a mirage in the hands of a judgment debtor who, with fleeting quickness, can change the residence from one place to another. Such an interpretation is ex facie contrary to the scheme, purpose and scope of the Family Courts Act. 21. Though the decision in Arunima's case (supra) is by a Bench of co-equal strength, since the provision in Section 20 of the Act was not brought to the notice of this Court or considered independently, the said judgment, in our considered view, is per incuriam. 22. The Latin expression per incuriam means through inadvertence. A decision can be said to be given per incuriam when the High Court or the Supreme Court, failed to refer to a relevant provision of a Statute which has a significant impact on the decision. 22. The Latin expression per incuriam means through inadvertence. A decision can be said to be given per incuriam when the High Court or the Supreme Court, failed to refer to a relevant provision of a Statute which has a significant impact on the decision. In the decisions reported in National Insurance Co.Ltd. v. Pranay Sethi and Others [ 2017 (16) SCC 680 ], and in Animal Welfare Board of India v. Ombudsman [ 2006 (2) KLT 91 ], it has been held that a judgment is per incuriam if the judgment is rendered without noticing or in ignorance of a statute or statutory provision which would render the earlier reasoning and conclusion demonstrably wrong. 23. On the date when Ext.P8 order was passed, admittedly the Family Court, Muvattupuzha which had passed the original decree had not sent it to any other court for execution. When the execution petition filed as E.P.No.32/2017 was pending before the Family Court, Muvattupuzha, it was certainly within its jurisdiction to pass Ext.P8 order. 24. Before we conclude, we wish to observe that even though the petitioner had ample opportunities to either abide by the condition stipulated in Ext.P8 order or in the compromise agreement, he has been persistent, only to avoid abiding by the obligations accepted or incurred by him under a compromise decree. On the other hand, he repeatedly attempts to go abroad without complying with the terms of the settlement. In such circumstances, we are not inclined to interfere in exercise of a supervisory jurisdiction to set aside Ext.P8. Accordingly the original petition is dismissed, but in the nature of the case, without costs.