IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(C).No. 20995 of 2010(O) -------------------------- AS.187/2009 of SUB COURT,NEYYATTINKARA OS.594/2005 of II ADDL.M.C.,NEYYATTINKARA .................... PETITIONER(S): --------------- T.SARALA, AGED 40, W/O.STEPHONSON, THANNININNA NADUTHATTIL PUTHEN VEEDU, ETTUKUTTY, THIRUPURAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.VINOD J.DEV SRI.PRAMOD J.DEV RESPONDENT(S): --------------- JOSEPH.S, AGED 58, CHEENIVILA KUTTIKKATTU PUTHEN VEEDU, KANJIRAMKULAM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM-695 121. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------- W.P.(C) No.20995 of 2010 ------------------------------- Dated this the 7th day of July, 2010 J U D G M E N T This writ petition is in challenge of condition imposed by the learned Sub Judge, Neyyattinkara, on I.A.No.1920/2009 in A.S.No.187/2009 of that court while granting stay of execution of money decree under challenge in that appeal. Learned Sub Judge vide the impugned order imposed a condition that petitioner shall furnish security for amount due under the decree to the satisfaction of trial court within a month (from 9.6.2010). According to the learned counsel since 25 cents of land belonging to the petitioner which is worth more than Rs.25 lakhs has already been attached in execution of the decree there is sufficient security for the decree amount and hence it is not necessary to furnish further security as ordered by the learned Sub Judge. 2. I am afraid, contention advanced by petitioner cannot be accepted. An attachment, before or after judgment is only a restraint against private alienation and it does not W.P.(C) No.20995/2010 2 create any right or interest in the property attached in favour of the attaching plaintiff or the decree holder as the case may be. Hence, mere attachment of the property belonging to the petitioner does not provide security for amount due under the decree. Under Order XLI Rule 5 (3)(c) of Code of Civil Procedure, appellate court could grant a stay of execution of the decree (for payment of money) only when security has been furnished by the appellant for due performance of the decree or order that may be ultimately binding upon the appellant. Hence, learned Sub Judge is right in directing the petitioner, while ordering stay of execution of the decree to furnish security. There is no reason to interfere. 3. Learned counsel states that petitioner is prepared to offer the very same property attached as security. It is open to the petitioner to do so, if he is otherwise entitled and as the trial court may permit. W.P.(C) No.20995/2010 3 4. Learned counsel seeks some time to furnish security in the trial court, since the time granted by the appellate court expires on 8.7.2010. Having regard to the facts and circumstances, petitioner is granted time till 16.7.2010 to furnish security in the trial court, as directed by the learned Sub Judge in the impugned order. With the above direction, the writ petition is closed. THOMAS P. JOSEPH, JUDGE. nj.