IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 WP(C).No.34434 of 2008 (Y) ---------------------------------- AGAINST THE ORDER IN EP.169/2008 IN OS.125/2006 of MUNSIFF COURT, KARUNAGAPPALLY .................... PETITIONER: --------------- PRABHAKARAN PILLAI, AGED 55 YEARS, S/O.RAGHAVAN PILLAI, PALAZHIYIL HOUSE, KOLLAKAMURY, VADAKKUMTHALA VILLAGE, KARUNAGAPPILLY. BY ADV. SRI.SIRAJ KAROLY RESPONDENT: ---------------- C.P.VINAYAKAN, S/O.P.K.PADMANABHAN, VENEETH HOUSE, KOLLAKAMURY, VADAKKUMTHALA VILLAGE, KARUNAGAPPILLY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.34434 of 2008 ------------------------------------------------ Dated this the 21st day of November, 2008 JUDGMENT Petitioner is the judgment debtor in E.P.169/08 in O.S.125/06 on the file of the Munsiff's Court, Karunagappally. Against the decree in the suit, he preferred A.S.200/08 before the District Court, Kollam. Interim stay was ordered by the District Judge vide Ext.P1 on the petitioner furnishing sufficient security for the decree amount in the court below within two months from the date of the said order namely 18/07/08. It appears that the petitioner produced a partition deed dt.11/08/1967 before the execution court. The court vide Ext.P6 order directed him to produce the original document. Against the said order, petitioner filed W.P.C.30157/08 before this Court contending that the original of the document is mortgaged with a Co-operative Bank and therefore, he is unable to produce the original. This Court disposed of the Writ Petition vide Ext.P8 judgment dt.15/10/08 observing that the W. P. C. No.34434 of 2008 -2- question as to whether sufficiency of security can be decided by producing a copy of the document etc. and whether it will be sufficient to discharge the decree debt are all matters which require consideration and therefore, the petitioner was directed to approach the District Court for extension of time for furnishing security. In the meanwhile, personal execution was also stayed by this Court for a period of one month from the date of Ext.P8. The District Court vide Ext.P9 order extended time till 12/11/08 for furnishing security. The petitioner moved Ext.P10 petition before the Munsiff's Court for permission to execute the security bond in compliance with the order of the District Court in A.S.200/08. The execution court vide Ext.P11 order dismissed the petition and directed issuance of warrant observing that the certified copy of the partition deed produced cannot be considered as sufficient security. 2. It is contended before me by the learned counsel for the petitioner that other than the W. P. C. No.34434 of 2008 -3- certified copy of the partition deed the petitioner had produced tax receipt dt.15/09/08 for payment of tax for the property from 1999 to 2008; a possession certificate issued by the Village Officer, Vadakkumthala in Karunagappally thaluk and a certificate issued by the Panmana Service Co-operative Bank on 19/09/08 to the effect that the property covered by the said partition deed stands hypothecated to them by way of security for loan availed by the petitioner from them and that Exts.P3, P4 and P5 produced in this Writ Petition are photostat copies of the said documents produced before the execution court. It appears that the court below has not countenanced any of those documents while passing Ext.P11 order observing that certified copy of the partition deed cannot be considered as sufficient security as ordered by the District Court. It is not a hard and fast rule that by way of security the original itself is to be produced when the original is shown to have been hypothecated for loan availed of from a Bank. In the instant case, W. P. C. No.34434 of 2008 -4- as it is submitted that the certificate obtained from the concerned Co-operative Bank is produced, it is for the court below to consider as to whether the security of property obtained under the partition deed is sufficient security for the decree debt despite the property having been offered as a security to the Bank for the loan amount. The court below is directed to consider the above aspects and dispose of the application for acceptance of security afresh and for the purpose, I set aside Ext.P11 and remit the matter to the execution court. The petitioner is to produce details from the concerned bank as to what is the loan availed of by him hypothecating the property and what is the amount that remains to be paid to the bank to enable the execution court to consider as to whether despite the said charge, property offered as security will be sufficient security for the decree debt. 3. With the above directions I dispose of this Writ Petition. Appropriate orders are to be passed afresh by the execution court positively W. P. C. No.34434 of 2008 -5- within three weeks from today. The petitioner shall produce a copy of this judgment before the execution court forthwith. Issue copy of this judgment urgently to the counsel for the petitioner. K.P.BALACHANDRAN, JUDGE kns/-