IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 WP(C).No. 4211 of 2009(B) ------------------------- AGAINST THE ORDER IN IA 1444/08 IN AS.81/2006 of SUB COURT,NEYYATTINKARA .................... PETITIONER(S): --------------- V.K.PARAMESWARAN NAIR,POPULAR HOME, MARANALLOOR VILLAGE,MARANALLOOR DESOM, THIRUVANANTHAPURAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): --------------- PARUKUTTY VASANTHAKUMARI,VELLAYANI MANAKKAKATH VEEDU, KALLIYOOR VILLAGE,KALLIYOOR DESOM, THIRUVANANTHAPURAM. ADV. SRI.G.S.REGHUNATH FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 4211/09 APPENDIX PETITIONER'S EXHIBITS: EXT:P1: COPY OF THE DECREE IN OS NO.793/2005 OF THE PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA. EXT.P2: COPY OF THE PETITION IA 1414/2008. EXT.P3: COPY OF THE SECURITY BOND DATED 14.8.2008. EXT.P4: COPY OF THE SALE DEED NO.396 OF 1989 OF SRO, ORUTTAMBALAM. EXT.P5: COPY OF THE ENCUMBRANCE CERTIFICATE NO.1687/08 DATED 8.8.2008. EXT.P6: COPY OF THE CERTIFICATE NO.2323/08 DATED 6.8.2008 ISSUED BY THE VILLAGE OFFICER, MARANALLOOR. EXT.P7: COPY OF THE BASIC TAX RECEIPT NO.0381975 DATED 22.7.2008. EXT.P8: COPY OF THE OBJECTION FILED BY THE RESPONDENT. EXT.P9: COPY OF THE ORDER DATED 25.10.2008 IN IA NO.1444/08 IN AS NO.81/08. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.4211 of 2009 --------------------------------------------- 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 WPC No.4211/2009 2 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 WPC No.4211/2009 3 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