IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN & THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947 OP (FC) NO. 187 OF 2025 AGAINST THE ORDER DATED 15.02.2025 IN IA 1/2025 IN OP NO.284 OF 2019 OF FAMILY COURT, OTTAPPALAM PETITIONER/PETITIONER/RESPONDENT: MOITHUTTY, AGED 49 YEARS, S/O LATE MAMMU, VATTARA HOUSE, KOTHAKURUSSI, P.O. PANAMANNA, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN - 679501 P.JAYARAM O.M.RAVI P.B.AJOY A.M.THOMAS (AYKAN) NANDHA KUMAR V.H. RESPONDENT/RESPONDENT/PETITIONER: SAJITHA, AGED 49 YEARS, D/O. LATE MUSTHAFA, THENAMOOCHIKKAL VEETIL, P.O.PATHAMKULAM, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN – 679522 SRI.RAVI K.PARIYARATH THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:29080 OP (FC) NO. 187 OF 2025 2 JUDGMENT Devan Ramachandran , J. The petitioner impugns Ext.P1 order of the learned Family Court, Ottappalam, which dismissed IA No.1/2025 in OP No.284/2019. 2. Shorn of all unnecessary details, the petitioner moved the above-mentioned application, seeking that the attached property be allowed to be substituted with another since the respondent, while moving the Original Petition, had obtained such attachment before judgment. 3. However, the learned Family Court dismissed the application through Ext.P1 saying “the property being an apartment forming part of an apartment complex with an undivided right over the land wherein the building stands, it may not be that easy for the respondent to recover the money due to her if she is found entitled to get a decree, by disposing the same under the due process of law” (sic). 4. Sri.P.Jayaram – appearing for the petitioner, vehemently argued that the above holdings of the learned Family Court are untenable and based on surmises. He 2025:KER:29080 OP (FC) NO. 187 OF 2025 3 contended that there is no difficulty for any apartment to be sold through Court; and hence that the findings of the learned Family Court require to be interdicted. He thus prayed that this Original Petition be allowed and Ext.P1 be set aside. 5. Sri.Ravi K.Pariyarath – appearing for the respondent, on the other hand, submitted that his client's case is not that an apartment cannot be sold, but that the one in question has been constructed in violation of law and hence without any legal worth. He explained that, the property on which the apartment is constructed, is a “Nilam” (Paddy Land as per records), and hence that it is impossible to have the same sold through a process of law. 6. We have examined Ext.P1, and as rightly argued by Sri.P.Jayaram, the only reason given by the learned Court in dismissing the application is as extracted above. 7. However, if the respondent has a case that the apartment is either worthless, or that it is incapable of being sold for other reasons, certainly the learned Court have a duty to consider the same and issue appropriate orders. 8. We are, therefore, of the view that Ext.P1 cannot find our favour; but do not propose to speak any further since we 2025:KER:29080 OP (FC) NO. 187 OF 2025 4 want the said Court to decide IA No.1/2025 as per law, adverting to all relevant aspects, including the contentions of the respondent. 9. To reiterate, the finding that an apartment in a complex cannot be sold as a general proposition, certainly cannot find our favour. We say nothing more. In the afore circumstances, this Original Petition is allowed and Ext.P1 is set aside; with a direction to the learned Family Court to reconsider IA No.1/2025 and to dispose it of without avoidable delay, as per law. Sd/- DEVAN RAMACHANDRAN JUDGE Sd/- M.B. SNEHALATHA JUDGE stu 2025:KER:29080 OP (FC) NO. 187 OF 2025 5 APPENDIX OF OP (FC) 187/2025 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER DATED 15/02/2025 IN I.A.NO.1/2025 IN O.P. NO. 284/2019 ON THE FILES OF FAMILY COURT, OTTAPALAM Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 18/11/2024 IN MAT. APPEAL NO.918/2024, HIGH COURT OF KERALA Exhibit P3 TRUE COPY OF THE APPLICATION TO LIFT THE ATTACHMENT, I.A.NO.1/2025 IN O.P. NO. 284/2019 ON THE FILES OF FAMILY COURT, OTTAPALAM Exhibit P4 TRUE COPY OF THE SECURITY BOND DATED 24/01/2025 EXECUTED BY THE PETITIONER HEREIN IN O.P.NO.284/2019 ON THE FILES OF FAMILY COURT, OTTAPALAM Exhibit P5 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT HEREIN IN I.A.NO.1/2025 IN O.P. NO. 284/2019 ON THE FILES OF FAMILY COURT, OTTAPALAM Exhibit P6 TRUE COPY OF THE ORIGINAL PETITION IN O.P. NO. 284/2019 ON THE FILES OF FAMILY COURT, OTTAPALAM Exhibit P7 TRUE COPY OF THE SALE DEED NO. 78 OF 2025, SRO OTTAPALAM, WHEREBY, THE PETITIONER PURCHASED THE FLAT OFFERED AS SECURITY TO LIFT THE ATTACHMENT Exhibit P8 TRUE COPY OF THE VALUATION CERTIFICATE DATED 19/03/2025 ISSUED BY THE CHARTERED ENGINEER & REGISTERED VALUER SHOWING THE PRESENT VALUE OF THE FLAT OFFERED AS SECURITY