Suneera vs Muhammed Basheer

P.G.Ajithkumar, J.

The petitioner in O.P.No.325 of 2022 on the files of the Family Court, Malappuram, has filed this Original Petition invoking the provisions under Article 227 of the Constitution of India seeking to set aside Ext.P5. As per Ext.P5, the Family Court removed attachment ordered in I.A.No.2 of 2022 on accepting another property offered by the respondent as security. The request of the respondent in that regard in I.A.No.8 of 2022 was thereby allowed.

On 26.08.2022, the Original petition was admitted. An interim order directing that the attachment effected by the Family Court as per the order in I.A.No.2 of 2022 in O.P.No.325 of 2022 to continue was granted. Pursuant to the notice, the respondent entered appearance.

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

Ext.P1 is a copy of O.P.No.325 of 2022 pending before the Family Court, Malappuram. The petitioner has filed that original petition seeking recovery of 130 sovereigns of gold ornaments and Rs.2 lakhs. Along with that O.P., the petitioner filed I.A.No.2 of 2022 seeking to attach the property scheduled thereto. The said property has an extent of 6 Acres and 38½ cents. The Family Court ordered conditional attachment. The respondent entered appearance and filed I.A.No.5 of 2022, seeking to lift the attachment and he offered another property as security. The respondent also filed I.A.No.8 of 2022 offering another property which is obtained as per document No.996 of 2005 as security. The Family Court after considering the contentions of either side, ordered to lift the attachment in respect of 6 acres 38½ cents of property. The Family Court held that 4 cents of property along with the building thereon, mentioned in I.A.No.5 of 2022 itself was enough to satisfy the claim of the petitioner in O.P.No.325 of 2022. It was further held that the property covered by document No.996 of 2005 along with the building, which was offered as security by the respondent by filing I.A.No.8 of 2022 would worth Rs.53,13,634/- and when the same is available to be proceeded against in the event of allowing the claim in O.P.No.325 of 2022, there is no justification in continuing attachment of six acres and 38½ cents of property in respect of which the respondent entered into an agreement for sale.

The learned counsel appearing for the petitioner would submit that 4 cents of property and the building thereon has already been attached in another original petition filed by the petitioner claiming past maintenance, which is O.P.No.556 of 2022, and therefore the same cannot be a security. It is further submitted that the said property lies contiguous to the larger extent, which belonged to the father of the respondent. The father died and his right devolved upon his legal representatives. Thus the respondent has only a fractional right in the property, and therefore the said property cannot be said available to be proceeded against. Another contention raised is that the said property, as per the fair value statement of the land and a reasonable valuation of the building, worths only Rs.29,60,200/-.

As regards 4.4 Ares of land and the building thereon, which was offered as security, it is contended by the petitioner that an order restraining the respondent from transferring the said property has been passed by the Magistrate in a petition filed by the petitioner under the Protection of Women from Domestic Violence Act, 2005 and therefore the same cannot be accepted as security.

The petitioner claims,-

(1) recovery of 130 sovereigns of gold ornaments and Rs.2 lakhs in O.P.No.325 of 2022;

(2) recovery of Rs.18 lakhs towards past maintenance in O.P.No.556 of 2022;

(3) protection order with respect to 4.4 Ares of land and the building thereon covered by document No.996 of 2005 in M.C.No.41 of 2020.

The Family Court found that the respondent has absolute right in 4 cents of property and the building thereon. It lies contiguous to the property belongs to the other legal representatives of his deceased father would not stand in the way of proceeding against it. The property covered by Document No.996 of 1995 is worth enough to satisfy all the claims of the petitioner. Resultantly, the Family Court lifted the attachment in respect of 6 acres and 38½ cents of property.

The order of attachment in O.P.No.556 of 2022 and the protection order in M.C.No.41 of 2020 are for safeguarding the interest of the petitioner in respect of his claim arising out of the matrimonial dispute between herself and the petitioner. Having obtained a protection order in respect of a property belonging to the respondent, she cannot say that the said property is not available to be proceeded against for realisation of her own claim. The purpose of an attachment before judgment is to secure realisation of the amount due under the decree, which may be passed in the case. If the property offered as security is worth enough to satisfy such a claim, the claimant cannot insist that the attachment obtained by the petitioner should continue. Once the security furnished is found sufficient, it is the obligation of the court under Order XXXVIII, Rule 9 of the Code to remove the attachment. In that view of the matter, we hold that the findings rendered by the Family Court do not suffer from any infirmity. Hence, this Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India cannot interfere with the findings. Therefore, this Original Petition is liable only to be dismissed, and the same is accordingly dismissed.