IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 35705 of 2008(A) --------------------------------------------- OS.398/2008 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: YOHANNAN, S/O. MATHAI, AMBATTUMALAL HOUSE, BEACH ROAD, KOVALAM, THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS: 1. UDAYAKUMAR, S/O. VIPINACHANDRAN NAIR, KATTAKKAL PUTHEN VEEDU, VENKUZHI. 2. M. SATHEERA, W/O. UDAYAKUMAR, RESIDING AT KATTAKKAL PUTHEN VEEDU, VENKUZHI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.35705 of 2008 A -------------------------- JUDGMENT Heard counsel for the petitioner/plaintiff in O.S.No.398/08 on the file of the Sub Court, Thiruvananthapuram. 2. The prayer in this writ petition is to set aside Exhibit P7 order and to direct the court below to consider Exhibit P2 petition afresh in the light of Exhibit P6 objection filed by him and not to release the amount offered as security for the plaint claim till revised orders are passed on Exhibit P2 petition. 3. It is submitted by the counsel for the petitioner that the property now offered as security as belonging absolutely to the second respondent/second defendant without any encumbrance is not established to be the property without any encumbrance, as what has been produced is only an attested copy of Document No.2838/87 of Sub Registry Office, Aryanad, which is a settlement WPC 35705/08 2 deed executed by her mother, settling A schedule properties therein to her and B schedule properties to her brother Dileep; that the document produced being only an attested copy, it is not known as to whether any loan has been availed of by pledging the original document of title; that there is no evidence from the copy of document produced that the original thereof is in possession of her brother Dileep, who is the allottee of B schedule property; that the averments in paragraph 8 of Exhibit P2 would show that the property had been pledged to the Bank by executing hypothecation deed and that the said liability has been got released vide Deed No.665/08 of Sub Registry Office, Aryanad; that in that event, the original document itself would be in the possession of the second respondent/second judgment debtor and that withholding of that document would suggest that the original is retained by the second respondent for creating liability over the property by pledging it and availing of loan if at all she has not already WPC 35705/08 3 availed of loan by pledging it with some other Bank; that the security bond executed is also not in compliance with the Civil Rules of Practice and that therefore, the security of immovable property offered should not have been accepted and the cash deposit made by way of security for getting release of the properties attached before judgment should not be allowed to be withdrawn by the respondents. 4. I have gone through the documents produced and am convinced that all the above contentions are valid, but had not been considered in the proper perspective by the court below and the court below has not got convinced that the property offered as security is free of encumbrance. Exhibit P7 order, therefore, deserves to be set aside. 5. It is submitted that the question of disbursing the amount deposited by way of security is being decided by the court below today and the case is posted for that purpose in the court below and that if the respondents receive the amount and walk off, there will not be any security for the WPC 35705/08 4 plaint claim and such a situation has been brought about by the wilful acts of the respondents after getting release of attachment obtained by the petitioner/plaintiff over the properties admittedly belonging to the respondents, over which there was no liability. In the circumstances of the case so disclosed, I am of the view that this is not a case, where orders are to be passed with notice to the respondents. 6. In the result, I set aside Exhibit P7 order and direct the court below to consider and pass appropriate orders on Exhibit P2 petition afresh considering Exhibit P6 objection filed by the petitioner as also the observations made above and to retain the cash deposit made by the respondents/ defendants till appropriate orders are passed afresh on Exhibit P2 petition. This writ petition is disposed of with the above directions. 3rd December, 2008 (K.P.Balachandran, Judge) tkv