Kerala High Court
Saajitha vs Prabha Rani on 28 May, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
OP(C) NO. 1611 OF 2023
ORDER IN IA NOS. 2 & 3/2022 IN OS NO.2 OF 2019 OF SUB COURT,
VATAKARA
PETITIONERS/PETITIONERS 1 TO 4/DEFENDANTS 1 TO 4:
1 SAAJITHA, AGED 43 YEARS
W/O LATE.T.C. KUNHABDULLA, DREAM HOUSE, V.M.
16/294 A, NADAKKUTHAZHA AMSOM PUTHUPPANAM DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT., PIN - 673105
2 ADIL ABDULLA, AGED 27 YEARS
S/O. T.C.KUNHABDULLA, DREAM HOUSE, V.M. 6/204 A,
PUTHUPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT, PIN - 673105
3 SHAMILL ABDULLA
AGED 21 YEARS
S/O. T.C.KUNHABDULLA, DREAM HOUSE, V.M. 6/204 A,
PUTHUPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT, PIN - 673105
4 MINNU @ HADIYA
AGED 10 YEARS
D/O. T.C.KUNHABDULLA, DREAM HOUSE, V.M. 6/204 A,
PUTHUPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT. REPRESENTED BY HER MOTHER AND NEXT
FRIEND SAAJITHA, W/O. T.C.KUNHABDULLA, DREAM
HOUSE, V.M. 6/204 A, PUTHUPANAM AMSOM DESOM,
VATAKARA TALUK, KOZHIKODE, PIN - 673105
BY ADVS.K.MOHANAKANNAN
D.S.THUSHARA(K/76/2010)
M.A.ZOHRA(K/441/1984)
O.P.(C).No.1611/2023
-:2:-
RESPONDENTS/RESPONDENT & PETITIONERS 5 & 6/PLAINTIFF &
SUPPL. DEFENDANTS 5 & ^:
1 PRABHA RANI, AGED 73 YEARS
D/O LATE K.I. MADHAVAN, 9D, SEIKEN JJ RETREAT,
KOOTTOLI, KOZHIKODE DISTRICT KERALA STATE
( PRESENTLY RESIDING AT FLAT NO.304. ADHEESHWAR
APARTMENTS FEROZESHAH ROAD, NEW DELHI, PIN -
110001
2 T.C.MOIDU HAJI, AGED 76 YEARS
S/O. KUNHABDULLA, THAZHE CHANTHAM KANDIYIL,
AYANCHERI AMSOM, KADAMERI DESOM, VATAKARA TALUK
KOZHIKODE DISTRICT., PIN - 673542
3 T.C.KUNHAMI
AGED 59 YEARS
W/O.MOIDU HAJI, S/O. KUNHABDULLA, THAZHE CHANTHAM
KANDIYIL, AYANCHERI AMSOM, KADAMERI DESOM,
VATAKARA TALUK KOZHIKODE DISTRICT., PIN - 673542
BY ADVS.Shyam Padman
Praveen H Harikumar
C.M.ANDREWS(K/000070/1989)
BOBY M.SEKHAR(K/422/2008)
LAYA MARY JOSEPH(K/000725/2016)
HARISH ABRAHAM(K/764/2007)
ASHWATHI SHYAM(K/1451/2020)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C).No.1611/2023
-:3:-
JUDGMENT
Ext.P13 order passed by the Sub Judge, Vatakara (for short
'the trial court') is under challenge in this original petition.
2. The petitioners are the defendants 1 to 4 and the
respondents are the plaintiff and supplemental defendants 5 and
3. The suit was one for money. The suit was decreed by
the trial court. Ext.P3 is the decree. The decree was for a sum
of ₹24,00,000/- with interest at the rate of 8% per annum from
12.7.2017 till 28.2.2019 and thereafter at the rate of 6% per
annum till realisation.
4. During the pendency of the suit, there was an
attachment before judgment. 19.55 cents of land belonging to
the defendants was attached. After the attachment, a portion of
the attached property was acquired for national highway and the
compensation was deposited before the Special Tahsildar (LANH).
Thereafter, the original attachment order was modified and the
attachment in respect of the rest of the property which was not
acquired was continued and an attachment was passed in respect
of part of the compensation deposited before the Special
Tahsildar as per order in I.A.No.1/2021. Thereafter, the suit was
decreed. The defendants preferred appeal before this Court as
RFA 88/2022. This Court stayed the execution of the decree on
condition that the petitioners shall furnish sufficient security
before the trial court. In the meanwhile, the plaintiff filed
execution petition to execute the decree before the trial court as
E.P.No.1/2022 (Ext.P5). The petitioners filed I.A.No.2/2022
before the trial court to accept the 9.25 cents of land mentioned
above as security. The petitioners also filed I.A.No.3/2022 to lift
the order of attachment passed in I.A.No.1/2021 and release the
amount deposited with the Special Tahsildar (LANH, Vatakara) to
the petitioners. The trial court dismissed those applications as
per Ext.P13 common order, mainly on the ground that 9.25 cents
of property offered as security was not sufficient to satisfy the
decree and that the said property is in attachment in suit
O.S.No.28/2018. It is challenging the said order, this original
petition has been filed.
5. I have heard Smt. Zohra, the learned counsel for the
petitioners and Sri. Shyam Padman, the learned Senior Counsel
for the 1st respondent instructed by Sri. C.M. Andrews, the
learned counsel.
6. Originally, 19.55 cents of land was attached. The said
property was sufficient to satisfy the suit claim. Later on, when a
portion of the property attached was acquired and the
compensation amount was deposited before the Special
Tahsildar (LANH), attachment was modified and the attachment
in respect of the balance extent of 9.25 cents of land was
continued and part of the compensation amount was also
attached. Already there is a decree against the defendants and
in favour of the plaintiff. It is submitted by the learned Senior
Counsel for the 1st respondent Sri. Shyam Padman that the
decree amount with interest as on today would come to about
₹42.5 lakhs. On the other hand, the learned counsel for the
petitioners Smt. Zohra submitted that it would come to about
₹36 lakhs. At any rate, the defendants are bound to offer
security to the satisfaction of the decree amount with interest, till
its realisation. The trial court did not accept the 9.25 cents of
land offered by the petitioners as security and release the
compensation amount mainly for the reason that the said
property was already encumbered. The learned Senior Counsel
for the 1st respondent submitted that, that apart there is nothing
to show that the said property is sufficient to satisfy the decree
amount. The counsel added that, even a valuation certificate is
not produced to show the market value of the property. If the
petitioners offer sufficient security to the satisfaction of the trial
court for the decree amount with interest till realisation,
definitely they are entitled to get the attachment over the
compensation amount lifted. But the security so offered should
be sufficient to satisfy the decree amount with interest. For
these reasons, this original petition is disposed of as follows:
7. (i) Ext.P13 common order is set aside.
(ii) The petitioners shall satisfy the trial court that the
property offered by them as security is free from all
encumbrances. They should further satisfy that the said property
is sufficient to satisfy the decree amount with interest.
(iii) If the trial court is satisfied that the property so
offered is sufficient to satisfy the decree amount, then it shall
accept the property as security and release the compensation
amount.
(iv) If the trial court find that 9.25 cents of land offered as
security is not sufficient to satisfy the decree, the attachment
over the compensation amount shall continue. The petitioners is
also at liberty to offer any other property as security.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
APPENDIX OF OP(C) 1611/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE LETTER DATED 30.03.2021
ISSUED BY THE SPECIAL TAHSILDAR,
L.A(NHAI), VATAKARA
Exhibit P2 TRUE COPY OF THE ORDER DATED 26.08.2021
I.A.NO.01/2021 IN O.S.NO.2/2019 ON THE
FILE OF SUBORDINATE JUDGES COURT,
VATAKARA
Exhibit P3 TRUE COPY OF THE DECREE DATED 30.11.2021
IN O.S. 2/2019 ON THE FILE OF
SUBORDINATE JUDGES COURT, VATAKARA
Exhibit P4 TRUE COPY OF THE ORDER DATED 23.05.2022
IN I.A.NO. 1/2022 IN R.F.A.NO.88 OF 2022
BY THIS HON'BLE COURT
Exhibit P5 TRUE COPY OF THE EXECUTION PETITION NO.
1/2022 IN O.S.NO.2/2019 BEFORE THE
SUBORDINATE JUDGES COURT, VADAKARA DATED
01.01.2022
Exhibit P6 TRUE COPY OF I.A.2/2022 DATED 01.06.2022
IN O.S. 2/2019 ON THE FILE OF
SUBORDINATE JUDGES COURT, VATAKARA
Exhibit P7 TRUE COPY OF THE ORDER DATED 30.9.2022
IN E.P.NO.01/2022 IN O.S. 2/2019 ON THE
FILE OF SUBORDINATE JUDGES COURT,
VATAKARA
Exhibit P8 TRUE COPY OF THE PROCEEDINGS SHEET IN
I.A.NO.02/2022 IN O.S. 2/2019 ON THE
FILE OF SUBORDINATE JUDGES COURT,
VATAKARA
Exhibit P9 TRUE COPY OF THE ORDER DATED 30.09.2022
IN I.A.NO.1/2022 IN R.F.A.NO.88 OF 2022
BY THE HON'BLE COURT
Exhibit P 10 TRUE COPY OF THE ORDER DATED 29.03.2023
IN R.P.NO.317/2023 IN R.F.A. NO.88 OF
2022 BY THE HON'BLE COURT
Exhibit P11 TRUE COPY OF THE PETITION I.A.NO. 3/2022
DATED 14.11.2022 BEFORE THE SUB COURT,
VADAKARA
Exhibit P 12 TRUE COPY OF THE COUNTER STATEMENT DATED
00.11.2022 IN I.A. NO. 3/2022 IN O.S.
NO.2/2019 BEFORE THE SUB COURT, VADAKARA
Exhibit P13 TRUE COPY OF THE COMMON ORDER DATED
17.06.2023 IN I.A.NO.2/22 AND I.A.
NO.3/22 IN O.S.NO.2/2019 PASSED BY THE
SUBORDINATE JUDGES COURT, VADAKARA
Exhibit P14 TRUE COPY OF THE SECURITY BOND DATED
01.06.2022 IN O.S.NO.2/2019 BEFORE THE
SUBORDINATE JUDGES COURT, VADAKARA
