Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946 OP(C) NO. 1611 OF 2023
ORDER IN IA NOS. 2 & 3/2022 IN OS NO.2 OF 2019 OF SUB COURT,
VATAKARA PETITIONERS/PETITIONERS 1 TO 4/DEFENDANTS 1 TO 4:
1 SAAJITHA, AGED 43 YEARS W/O LATE.T.C. KUNHABDULLA, DREAM HOUSE, V.M. VATAKARA TALUK, KOZHIKODE DISTRICT., PIN - 673105 2 ADIL ABDULLA, AGED 27 YEARS S/O. T.C.KUNHABDULLA, DREAM HOUSE, V.M. 6/204 A, PUTHUPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673105 3 SHAMILL ABDULLA AGED 21 YEARS S/O. T.C.KUNHABDULLA, DREAM HOUSE, V.M. 6/204 A, PUTHUPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673105 4 MINNU @ HADIYA AGED 10 YEARS D/O. T.C.KUNHABDULLA, DREAM HOUSE, V.M. 6/204 A, PUTHUPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. REPRESENTED BY HER MOTHER AND NEXT FRIEND SAAJITHA, W/O. T.C.KUNHABDULLA, DREAM HOUSE, V.M. 6/204 A, PUTHUPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE, PIN - 673105 BY ADVS.K.MOHANAKANNAN D.S.THUSHARA(K/76/2010) M.A.ZOHRA(K/441/1984) -:2:-
RESPONDENTS/RESPONDENT & PETITIONERS 5 & 6/PLAINTIFF & SUPPL. DEFENDANTS 5 & ^:
1 PRABHA RANI, AGED 73 YEARS D/O LATE K.I. MADHAVAN, 9D, SEIKEN JJ RETREAT, KOOTTOLI, KOZHIKODE DISTRICT KERALA STATE ( PRESENTLY RESIDING AT FLAT NO.304. ADHEESHWAR APARTMENTS FEROZESHAH ROAD, NEW DELHI, PIN - 2 T.C.MOIDU HAJI, AGED 76 YEARS S/O. KUNHABDULLA, THAZHE CHANTHAM KANDIYIL, AYANCHERI AMSOM, KADAMERI DESOM, VATAKARA TALUK KOZHIKODE DISTRICT., PIN - 673542 3 T.C.KUNHAMI AGED 59 YEARS W/O.MOIDU HAJI, S/O. KUNHABDULLA, THAZHE CHANTHAM KANDIYIL, AYANCHERI AMSOM, KADAMERI DESOM, VATAKARA TALUK KOZHIKODE DISTRICT., PIN - 673542 BY ADVS.Shyam Padman Praveen H Harikumar C.M.ANDREWS(K/000070/1989) BOBY M.SEKHAR(K/422/2008) LAYA MARY JOSEPH(K/000725/2016) HARISH ABRAHAM(K/764/2007) ASHWATHI SHYAM(K/1451/2020)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:3:-
JUDGMENT
Ext.P13 order passed by the Sub Judge, Vatakara (for short 'the trial court') is under challenge in this original petition.
2. The petitioners are the defendants 1 to 4 and the respondents are the plaintiff and supplemental defendants 5 and 6 in O.S.No.2/2019.
3. The suit was one for money. The suit was decreed by
the trial court. Ext.P3 is the decree. The decree was for a sum of ₹24,00,000/- with interest at the rate of 8% per annum from 12.7.2017 till 28.2.2019 and thereafter at the rate of 6% per annum till realisation.
4. During the pendency of the suit, there was an
attachment before judgment. 19.55 cents of land belonging to the defendants was attached. After the attachment, a portion of the attached property was acquired for national highway and the compensation was deposited before the Special Tahsildar (LANH). Thereafter, the original attachment order was modified and the attachment in respect of the rest of the property which was not
-:4:- acquired was continued and an attachment was passed in respect of part of the compensation deposited before the Special Tahsildar as per order in I.A.No.1/2021. Thereafter, the suit was decreed. The defendants preferred appeal before this Court as RFA 88/2022. This Court stayed the execution of the decree on condition that the petitioners shall furnish sufficient security
before the trial court. In the meanwhile, the plaintiff filed execution petition to execute the decree before the trial court as E.P.No.1/2022 (Ext.P5). The petitioners filed I.A.No.2/2022 before the trial court to accept the 9.25 cents of land mentioned above as security. The petitioners also filed I.A.No.3/2022 to lift the order of attachment passed in I.A.No.1/2021 and release the amount deposited with the Special Tahsildar (LANH, Vatakara) to
the petitioners. The trial court dismissed those applications as per Ext.P13 common order, mainly on the ground that 9.25 cents of property offered as security was not sufficient to satisfy the decree and that the said property is in attachment in suit O.S.No.28/2018. It is challenging the said order, this original petition has been filed. -:5:-
5. I have heard Smt. Zohra, the learned counsel for the petitioners and Sri. Shyam Padman, the learned Senior Counsel for the 1st respondent instructed by Sri. C.M. Andrews, the learned counsel.
6. Originally, 19.55 cents of land was attached. The said property was sufficient to satisfy the suit claim. Later on, when a portion of the property attached was acquired and the
compensation amount was deposited before the Special Tahsildar (LANH), attachment was modified and the attachment in respect of the balance extent of 9.25 cents of land was continued and part of the compensation amount was also attached. Already there is a decree against the defendants and in favour of the plaintiff. It is submitted by the learned Senior Counsel for the 1st respondent Sri. Shyam Padman that the decree amount with interest as on today would come to about
₹42.5 lakhs. On the other hand, the learned counsel for the petitioners Smt. Zohra submitted that it would come to about ₹36 lakhs. At any rate, the defendants are bound to offer security to the satisfaction of the decree amount with interest, till -:6:-
its realisation. The trial court did not accept the 9.25 cents of land offered by the petitioners as security and release the compensation amount mainly for the reason that the said property was already encumbered. The learned Senior Counsel for the 1st respondent submitted that, that apart there is nothing to show that the said property is sufficient to satisfy the decree amount. The counsel added that, even a valuation certificate is not produced to show the market value of the property. If the petitioners offer sufficient security to the satisfaction of the trial court for the decree amount with interest till realisation, definitely they are entitled to get the attachment over the compensation amount lifted. But the security so offered should
be sufficient to satisfy the decree amount with interest. For these reasons, this original petition is disposed of as follows:
7. (i) Ext.P13 common order is set aside.
(ii) The petitioners shall satisfy the trial court that the
property offered by them as security is free from all encumbrances. They should further satisfy that the said property is sufficient to satisfy the decree amount with interest. -:7:-
(iii) If the trial court is satisfied that the property so offered is sufficient to satisfy the decree amount, then it shall accept the property as security and release the compensation amount.
(iv) If the trial court find that 9.25 cents of land offered as
security is not sufficient to satisfy the decree, the attachment over the compensation amount shall continue. The petitioners is also at liberty to offer any other property as security.
Sd/- DR. KAUSER EDAPPAGATH JUDGE kp -:8:- APPENDIX OF OP(C) 1611/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER DATED 30.03.2021 ISSUED BY THE SPECIAL TAHSILDAR, L.A(NHAI), VATAKARA Exhibit P2 TRUE COPY OF THE ORDER DATED 26.08.2021 I.A.NO.01/2021 IN O.S.NO.2/2019 ON THE FILE OF SUBORDINATE JUDGES COURT, VATAKARA Exhibit P3 TRUE COPY OF THE DECREE DATED 30.11.2021 IN O.S. 2/2019 ON THE FILE OF SUBORDINATE JUDGES COURT, VATAKARA Exhibit P4 TRUE COPY OF THE ORDER DATED 23.05.2022 IN I.A.NO. 1/2022 IN R.F.A.NO.88 OF 2022 BY THIS HON'BLE COURT Exhibit P5 TRUE COPY OF THE EXECUTION PETITION NO. SUBORDINATE JUDGES COURT, VADAKARA DATED 01.01.2022 Exhibit P6 TRUE COPY OF I.A.2/2022 DATED 01.06.2022 IN O.S. 2/2019 ON THE FILE OF SUBORDINATE JUDGES COURT, VATAKARA Exhibit P7 TRUE COPY OF THE ORDER DATED 30.9.2022 IN E.P.NO.01/2022 IN O.S. 2/2019 ON THE FILE OF SUBORDINATE JUDGES COURT, VATAKARA Exhibit P8 TRUE COPY OF THE PROCEEDINGS SHEET IN I.A.NO.02/2022 IN O.S. 2/2019 ON THE FILE OF SUBORDINATE JUDGES COURT, VATAKARA -:9:- Exhibit P9 TRUE COPY OF THE ORDER DATED 30.09.2022 IN I.A.NO.1/2022 IN R.F.A.NO.88 OF 2022 BY THE HON'BLE COURT Exhibit P 10 TRUE COPY OF THE ORDER DATED 29.03.2023 IN R.P.NO.317/2023 IN R.F.A. NO.88 OF 2022 BY THE HON'BLE COURT Exhibit P11 TRUE COPY OF THE PETITION I.A.NO. 3/2022 DATED 14.11.2022 BEFORE THE SUB COURT, VADAKARA Exhibit P 12 TRUE COPY OF THE COUNTER STATEMENT DATED 00.11.2022 IN I.A. NO. 3/2022 IN O.S. NO.2/2019 BEFORE THE SUB COURT, VADAKARA Exhibit P13 TRUE COPY OF THE COMMON ORDER DATED
17.06.2023 IN I.A.NO.2/22 AND I.A. NO.3/22 IN O.S.NO.2/2019 PASSED BY THE SUBORDINATE JUDGES COURT, VADAKARA Exhibit P14 TRUE COPY OF THE SECURITY BOND DATED 01.06.2022 IN O.S.NO.2/2019 BEFORE THE SUBORDINATE JUDGES COURT, VADAKARA