Sushma Prakash vs Anju Prakash

P.G.Ajithkumar, J.

The petitioner is the 2nd judgment debtor in E.P.No.17 of 2015 in O.P.No.1443 on the file of the Family Court, Chavara. He has filed E.A.No.79 of 2022 for a relief of lifting the attachment in respect of his property on accepting the deposit of Rs.15 lakhs and fixed deposit receipts for the remainder of the decree debt. The Family Court dismissed the said application as per Ext.P7 order dated 11.10.2022. The petitioner challenges the said order in this Original Petition filed under Article 227 of the Constitution of India.

On 28.10.2022, notice on admission was directed to be served on the respondent. The respondent entered appearance through her counsel.

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

Ext.P3 is a copy of E.P.No.17 of 2015 in O.P.No.1443 of 2013. The claim in the execution petition is recovery of Rs.15 lakhs along with its interest, totalling Rs.15,76,140/-. The contention of the petitioner is that the decree was got corrected by the respondent-decree holder without giving notice to the petitioner. Therefore, she has filed an application to delete the said correction in the decree, and in the meantime, execution of the decree may not be allowed and pointing out that fact, the petitioner has filed E.A.No.79 of 2022.

Ext.P5 is a copy of the receipts for the deposit of various amounts before the Execution Court (Family Court, Chavara). The petitioner would contend thats he already has deposited Rs.15 lakhs and produced fixed deposit receipts for Rs.7 lakhs before the Family Court. She sought to lift the attachment on accepting the security. The Family Court, however, held that the petitioner has no right to contend that the decree as it stands now is not liable to be executed, having that question been concluded by the High Court. The Family Court further held that as per the rules of appropriation, the amount deposited by the judgment debtors is to be adjusted first against interest, then againt costs and lastly towards the principal amount. Therefore, the petitioner cannot be allowed to contend that till the controversy regarding interest is resolved, the execution may be proceeded with and the attachment lifted.

What the Family Court observed is that the judgment-debtor can deposit the decree debt after calculation of the amount due under the decree and for that purpose, the judgment debtors have to file the statement of accounts regarding payment made and the balance due, as per the decree. That exercise is yet to be done.

In such circumstances, it is only appropriate to postpone the proceedings for sale of the property in execution of the decree in O.P.No.1443 of 2013. If the petitioner already deposited Rs.15 lakhs, which is equal to the principal sum due as per the decree and the respondent is able to appropriate produced receipts showing fixed deposit for Rs.7 lakhs which can be used to satisfy the balance claim under the decree, it is appropriate to direct to quantify the whole amount due. If the deposit is insufficient to satisfy the decree debt only, sale of the property to realise the reminder is required. Hence, this Original Petition is disposed of directing the Family Court, Chavara to keep in abeyance the proceedings for sale of 4.93 Ares of land comprised in Re-survey No.302/9 in Block No.13 of Thodiyoor Village, till the exercise of setting the statement of accounts is completed.