Jayaprakash vs Rajalakshmi

Ext.P6 order dated 12.01.2021 dismissing I.A.No.4/2020 in O.S.No.177/2020 passed by the Principal Sub Judge, Thiruvananthapuram, is challenged by the aggrieved defendant. Ext.P2 security bond was furnished by the petitioner seeking to vacate conditional order of attachment before judgment passed by the court.

The respondent/plaintiff filed objection contending that the property offered as security cannot be accepted. The court below after hearing the parties passed Ext.P6 order, which is under challenge in this original petition.

The reason pointed out by the court below for declining to accept security is that the property offered is situated in an interior part far away from public road. The court below apprehends that in the event of the said property being accepted as sufficient security, it may deprive of the holder's right to access the property.

I heard the learned counsel for the petitioner as well as the respondent.

My attention was drawn to Ext.P2 security bond and it was pointed out by the learned counsel appearing for the respondent/plaintiff that sufficient provision for use of pathway to the property has not been provided therein. It was submitted that in the absence of proper access being provided from public road through the remaining property of the petitioner, Ext.P2 property may not be accepted.

The learned counsel for the respondent further submits that an application[I.A.No.5/2020] for issue of commission was filed to ascertain the lie, nature etc. of Ext.P2 property which is a part of the entire property owned and possessed by the petitioner. No orders were yet passed on the application.

After hearing the learned counsel appearing on both sides, I am of the view that unless the court below ensures that there is unquestionable right of access attached to the property offered, the same cannot be accepted as sufficient security in satisfaction of the suit claim.

In my view, therefore, the matter requires reconsideration and fresh orders are liable to be passed on I.A.No.4/2020 in O.S.No.177/2020.

In the result, this original petition is allowed setting aside the impugned order dated 12.01.2021. The court below shall reconsider I.A.No.4/2020 in O.S.No.177/2020, after hearing the parties in accordance with law and pass necessary orders. The court below may also consider I.A.No.5/2020 filed by the respondent for issue of commission. It is made clear that the court below before accepting the security shall make sure that adequate provision for pathway along the property owned by the petitioner for ingress to and egress from the property offered as security, is incorporated in the security bond. A sketch or a fair plan drawn to scales and signed by the parties may also be ordered to be attached to the bond.

All pending interlocutory applications will stand closed.