IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4211 of 2009(B)
1. V.K.PARAMESWARAN NAIR,POPULAR HOME,
... Petitioner
Vs
1. PARUKUTTY VASANTHAKUMARI,VELLAYANI
... Respondent
For Petitioner :SRI.G.P.SHINOD
For Respondent :SRI.G.S.REGHUNATH
The Hon'ble MR. Justice K.T.SANKARAN
Dated :16/03/2009
O R D E R
K.T.SANKARAN, J.
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W.P.(C).No.4211 of 2009
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Dated this the 16th day of March, 2009
JUDGMENT
The defendant in O.S.No.793 of 2005 on the file of the
court of the Principal Munsiff of Neyyattinkara filed A.S.No.81 of
2006 before the Sub Court, Neyyattinkara challenging the
judgment and decree of the trial court. The appeal is pending.
2. Pending suit an extent of 2 Ares and 44 sq.mtr of land
in resurvey No.541/8 belonging to the petitioner was attached
before judgment on 18.10.2005. That attachment continued till
the decree. At the appellate stage, the petitioner filed
I.A.No.1444 of 2008 praying for substitution of the security. He
offered an extent with 4.70 Ares of land in resurvey No.151/12 as
security for the purpose of getting the property attached before
judgment released from attachment. Ext.P3 security bond was
produced by the petitioner. He also produced the original
document in his name and also supporting documents to prove
his contention that he has title to the property offered as
security.
3. The respondent/decree holder opposed the application
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filed by the petitioner. The respondent would contend that the
petitioner has no title to the property which is now offered as
security. She would also contend that the trial court having
attached the property before judgment and thereafter, the
judgment having been passed, the security cannot be
substituted. The court below accepted the contentions raised by
the decree holder and dismissed I.A.No.1444 of 2008. The
petitioner has filed this Writ Petition challenging Ext.P9 order in
I.A.No.1444 of 2008.
4. The view taken by the court below that the
attachment before judgment when continues up to the passing of
the decree, the attachment cannot be lifted and another property
cannot be accepted as security without setting aside the decree
itself is not correct. Then the question would arise whether the
finding of the court below on other aspects is correct of not.
5. The learned counsel for the petitioner submitted that
the petitioner is prepared to produce fixed deposit receipts as
security for the decree amount and that he is prepared to
execute the necessary security bond in terms of Rule 370 of
Civil Rules of Practice. The learned counsel appearing for the
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respondent/decree holder submitted that if the security offered
in terms of the submissions made by the petitioner is proper and
correct, the decree holder has no objection in accepting the
same.
Recording these submissions, the Writ Petition is disposed
of as follows:
(i) The petitioner shall produce fixed deposit receipts for
such amount to cover the decree amount within a
period of two weeks. The petitioner shall also
produce before the trial court the security bond and
the affidavit required as per Rule 370 of the Civil
Rules of Practice.
(ii) The court below shall hear the respondent and
consider the objections, if any.
(iii) If the court below finds that the fixed deposit receipts
produced by the Writ Petitioner can be accepted,
appropriate orders shall be passed and the property
attached before judgment shall be released from
attachment.
(iv) If the petitioner fails to comply with the aforesaid
WPC No.4211/2009 4
terms or if the court below finds that the security
produced by the petitioner cannot be accepted, the
attachment before judgment of the property belonging
to the petitioner shall continue to be in force.
(v) The court below shall make every endeavour to see
whether the matter can be finalised before closure of
the court for summer holidays.
K.T.SANKARAN,
JUDGE
csl