IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 15510 of 2009(O) --------------------------------------- AGAINST THE ORDER IN I.A .NO.281/09&864/2008 IN OS.NO.67/2007 OF SUB COURT, QUILANDY. .................... PETITIONER: ------------------- M.C.MAJEED, AGED 40, S/O.MAMMU, MOONNUKUNDAN CHALIL HOUSE, MELADY AMSOM PAYYOLI POSTKOYILANDY TALUK,KOZHIKODE DISTRICT. BY ADV. MR.C.P.MOHAMMED NIAS. RESPONDENT: ---------------------- CHERAKKOTH HAMSA S/O.MAMMY, MELADY AMSOM, KEEZHUR DESOM KOYILANDY TALUK, KOZHIKODE DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.15510 of 2009 - O --------------------------------- Dated this the 5th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following relief: “To set aside Ext.P6 order and direct the court below to consider the sufficiency of the attached property belonging to the petitioner as security for the decree debt”. 2. Petitioner is the defendant in O.S.No.67/2007 on the file of the Sub Court, Koyilandi in which an ex-parte decree was passed against him. Suit was one for money and a decree was passed for realisation of a sum of Rs.6,24,525/- with interest and cost. Petitioner moved an application for setting aside the ex- parte decree and, after enquiry, the learned Sub Judge allowed that application on terms directing the petitioner to deposit the cost awarded under the ex-parte decree within two weeks. Petitioner approached this Court by filing C.R.P.No.828/2008 questioning the correctness of the order passed by the learned Sub Judge directing deposit of cost under the ex-parte decree as W.P.(C).No.15510 of 2009 - O 2 a condition precedent for setting aside the decree. Cost awarded in the ex-parte decree was for to an amount of Rs.67,608/- and he was unable to raise such huge amount within two weeks, was the grievance canvassed by him in the revision. Petitioner volunteered to furnish security for the entire decree amount and also the cost. Taking note of the submissions made, this Court passed an order directing him to furnish security for the entire decree debt inclusive of cost within two weeks from the date of that order. Pursuant to that order, petitioner moved an application before the learned Sub Judge to consider whether the property already attached before judgment could be treated as sufficient as security towards the decree debt and the cost awarded. Since such a petition was filed after the time fixed by this Court, learned Sub Judge was not inclined to consider the petition and, thereupon, the petitioner again moved this Court for extension of time which after consideration was granted. When the matter again came up before the learned Sub Judge, it is the grievance of the petitioner that without considering his request for passing appropriate orders on the sufficiency of the property W.P.(C).No.15510 of 2009 - O 3 already under attachment towards security for the decree debt and cost he was directed to furnish security as ordered by the court. Under the above circumstances, petitioner has approached this Court impeaching the correctness of that order by this petition. 3. I heard the counsel for the petitioner. 4. Having regard to the facts and circumstances presented, I find that notice to the respondent is not necessary, and it dispensed. It is true that the petitioner volunteered to furnish security for the decree debt over and above the order of the court below for deposit of the cost while setting aside the ex- parte decree, and this Court accepting the proposal made by the judgment debtor ordered him to furnish security for the decree debt also. That does not mean that he should furnish separate security as it is within his rights to ask the court to consider the attached property as security. The only question that remained to be considered by the court was whether the attached property is sufficient enough to satisfy the decree debt and the cost. That was not done. As if this Court had directed furnishing of fresh W.P.(C).No.15510 of 2009 - O 4 security, the learned Sub Judge ordered the petitioner to produce security. Property under attachment can also be offered by the petitioner as security and its sufficiency alone need to be considered. The learned Sub Judge is directed to consider whether the property already under attachment is sufficient as security to satisfy the decree debt and also cost with notice to the plaintiff. In case it is found that the attached property is not sufficient, it is needless to point out that the petitioner has to furnish adequate security to satisfy the decree debt and cost. The writ petition is disposed of accordingly. S.S.SATHEESACHANDRAN, JUDGE. bkn/-