Kerala High Court
Jayaprakash vs Rajalakshmi on 26 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943
OP(C).No.265 OF 2021
AGAINST THE ORDER IN I.A.NO.4/2020 IN O.S.NO. 177/2020 OF
PRINCIPAL SUB COURT,TRIVANDRUM
PETITIONER/PETITIONER:
JAYAPRAKASH,
AGED 70 YEARS,
S/O BENSON,
BETHAYAL HOUSE,
BETHAYAL VILAKAM MUTTAKKADU P O,
VENGANOOR VILLAGE, PIN-695523.
THIRUVANANTHAPURAM DISTRICT.
BY ADVS.SHRI.M.V.S.NAMPOOTHIRY
SHRI.SHINTO THOMAS
RESPONDENT/RESPONDENT:
RAJALAKSHMI,
AGED 59 YEARS,
W/O BALAKRISHNAN, AMBADY T C, 48/684(6),
MANACAUD VILLAGE, AMBALATHARA,
POONTHURA P O, THIRUVANANTHAPURAM-695023.
BY ADV. SRI.M.R.ARUNKUMAR
SRI.A.RAJEEVKUMAR
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C)No.265/2021
-:2:-
Dated this the 26th day of March,2021
J U D G M E N T
Ext.P6 order dated 12.01.2021 dismissing
I.A.No.4/2020 in O.S.No.177/2020 passed by the
Principal Sub Judge, Thiruvananthapuram, is
challenged by the aggrieved defendant. Ext.P2
security bond was furnished by the petitioner
seeking to vacate conditional order of attachment
before judgment passed by the court.
2. The respondent/plaintiff filed objection
contending that the property offered as security
cannot be accepted. The court below after hearing
the parties passed Ext.P6 order, which is under
challenge in this original petition.
3. The reason pointed out by the court below
for declining to accept security is that the
property offered is situated in an interior part
far away from public road. The court below
apprehends that in the event of the said property
being accepted as sufficient security, it may
O.P.(C)No.265/2021
deprive of the holder's right to access the
property.
4. I heard the learned counsel for the
petitioner as well as the respondent.
5. My attention was drawn to Ext.P2 security
bond and it was pointed out by the learned counsel
appearing for the respondent/plaintiff that
sufficient provision for use of pathway to the
property has not been provided therein. It was
submitted that in the absence of proper access
being provided from public road through the
remaining property of the petitioner, Ext.P2
property may not be accepted.
6. The learned counsel for the respondent
further submits that an application[I.A.No.5/2020]
for issue of commission was filed to ascertain the
lie, nature etc. of Ext.P2 property which is a
part of the entire property owned and possessed by
the petitioner. No orders were yet passed on the
application.
7. After hearing the learned counsel
appearing on both sides, I am of the view that
unless the court below ensures that there is
O.P.(C)No.265/2021
unquestionable right of access attached to the
property offered, the same cannot be accepted as
sufficient security in satisfaction of the suit
claim.
8. In my view, therefore, the matter
requires reconsideration and fresh orders are
liable to be passed on I.A.No.4/2020 in
O.S.No.177/2020.
In the result, this original petition is
allowed setting aside the impugned order dated
12.01.2021. The court below shall reconsider
I.A.No.4/2020 in O.S.No.177/2020, after hearing
the parties in accordance with law and pass
necessary orders. The court below may also
consider I.A.No.5/2020 filed by the respondent for
issue of commission. It is made clear that the
court below before accepting the security shall
make sure that adequate provision for pathway
along the property owned by the petitioner for
ingress to and egress from the property offered as
security, is incorporated in the security bond. A
sketch or a fair plan drawn to scales and signed
by the parties may also be ordered to be attached
O.P.(C)No.265/2021
to the bond.
All pending interlocutory applications will
stand closed.
Sd/-
T.V.ANILKUMAR,JUDGE
DST //True copy/
P.A.To Judge
O.P.(C)No.265/2021
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTICE UNDER ORDER 38,
RULE 5, ISSUED BY THE PRINCIPAL SUB
COURT, THIRUVANANTHAPURAM TO THE
PETITIONER.
EXHIBIT P2 TRUE COPY OF THE SECURITY BOND
FURNISHED BY THE PETITIONER.
EXHIBIT P3 TRUE COPY OF THE VALUATION CERTIFICATE
ISSUED TO THE PETITIONER FROM VENGANOOR
VILLAGE OFFICE, DATED 19/11/2020.
EXHIBIT P4 TRUE COPY OF THE SKETCH PRODUCED BY THE
PETITIONER ALONG WITH THE SECURITY
OFFERED.
EXHIBIT P5 TRUE COPY OF THE POSSESSION CERTIFICATE
ISSUED TO THE PETITIONER BY THE VILLAGE
OFFICER, VENGANOOR VILLAGE DATED
5/11/2020.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 12.01.2021
IN I.A. NO.4/20 IN O.S.NO. 177/2020 OF
THE PRINCIPAL SUB COURT,
THIRUVANANTHAPURAM.
EXHIBIT P7 TRUE COPY OF THE AGREEMENT FOR SALE
EXECUTED BETWEEN THE PETITIONER AND THE
RESPONDENT.
RESPONDENT'S EXHIBITS:
EXHIBIT R1(A) COPY OF THE PLAINT IN O.S.NO.177 OF
2020 ON THE FILE OF THE SUB COURT,
THIRUVANANTHAPURAM DATED 19.10.2020
EXHIBIT R1(B) COPY OF THE AFFIDAVIT AND PETITION
I.A.NO.1 OF 2020 IN O.S.NO.177 OF 2020
OF THE SUB COURT, THIRUVANANTHAPURAM
DATED 19.10.2020
EXHIBIT R1(C) COPY OF THE OBJECTION TO THE ATTACHMENT
PETITION FILED BY THE DEFENDANT IN
O.S.NO.177 OF 2020 BEFORE THE SUB
COURT, THIRUVANANTAHPURAM DATED
O.P.(C)No.265/2021
8.1.2021
EXHIBIT R1(D) COPY OF THE AFFIDAVIT AND PETITION
I.A.NO.4 OF 2020 IN O.S.NO.177 OF 2020
OF SUB COURT, THIRUVANANTHAPURAM DATED
23.11.2020
EXHIBIT R1(E) COPY OF THE SECURITY BOND EXECUTED BY
THE DEFENDANT IN O.S.NO.177 OF 2020 OF
THE SUB COURT, THIRUVANANTHAPURAM DATED
23.11.2020
EXHIBIT R1(F) COPY OF THE OBJECTION FILED BY THE
PLAINTIFF AGAINST I.A.NO.4 OF 2020 IN
O.S.NO.177 OF 2020 OF THE SUBORDINATE
JUDGE'S COURT, THIRUVANANTHAPURAM.
EXHIBIT R1(G) COPY OF THE AFFIDAVIT AND PETITION FOR
APPOINTMENT OF COMMISSION FILED BY THE
COUNTER PETITIONER/PLAINTIFF IN
I.A.NO.5 OF 2020 IN O.S.NO.177 OF 2020
OF THE SUBORDINATE JUDGE'S COURT,
THIRUVANANTHAPURAM DATED 1.12.2020
EXHIBIT R1(H) COPY OF THE STATEMENT OF OBJECTION
FILED BY THE DEFENDANT IN O.S.NO.177 OF
2020 BEFORE THE SUBORDINATE JUDGE'S
COURT, THIRUVANANTHAPURAM DATED
2.12.2020
