The Security shall have Adequate Provision for Pathway from the Property Offered as Security Bond is to be Incorporated in the Security Bond: High Court of Kerala.
The security bond shall make sure that adequate provision for pathway along the property is owned for ingress to and egress from the property offered as security, is incorporated in the security bond. This Honorable judgement was passed by High Court of Kerala in the case of Jayaprakash v. Rajalakshmi [OP(C). No. 265 OF 2021] by The Hon’ble Mr. Justice T.V Anil Kumar. Ext.P6 order dismissing I.A.No.4/2020 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 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. The court heard the learned counsel for the petitioner as well as the respondent and the attention were 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 was 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 for issue of commission was filed to ascertain the lie, nature etc. of Ext.P2 property which was 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, the court was 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 therefore, the matter requires reconsideration and fresh orders are liable to be passed. In the result, this original petition is allowed setting aside the impugned order dated 12.01.2021.”
IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR FRIDAY THE 26TH DAY OF MARCH 2021 5TH CHAITHRA 1943 OP(C).No.265 OF 2021 AGAINST THE ORDER IN I.A.NO.4 2020 IN O.S.NO. 177 2020 OF PRINCIPAL SUB COURT TRIVANDRUM AGED 70 YEARS S O BENSON BETHAYAL HOUSE BETHAYAL VILAKAM MUTTAKKADU P O VENGANOOR VILLAGE PIN 695523. SHRI.SHINTO THOMAS AGED 59 YEARS W O BALAKRISHNAN AMBADY T C 48 684(6) MANACAUD VILLAGE AMBALATHARA POONTHURA P O THIRUVANANTHAPURAM 695023 BY ADV. SRI.M.R.ARUNKUMAR SRI.A.RAJEEVKUMAR THIS OP HAVING BEEN FINALLY HEARD ON 26.03.2021 THE COURT ON THE SAME DAY DELIVERED THE :2: Dated this the 26th day of March 2021 JUDGMENT 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 :3: deprive of the holder s right to access the 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 After hearing the learned counsel appearing on both sides I am of the view that unless the court below ensures that there is :4: unquestionable right of access attached to the property offered the same cannot be accepted as sufficient security in satisfaction of the suit In my view therefore the matter requires reconsideration and fresh orders are liable to be passed on I.A.No.4 2020 in 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 All pending interlocutory applications will :5: to the bond. P.A.To Judge PETITIONER S EXHIBITS :6: RESPONDENT S EXHIBITS: TRUE COPY OF THE NOTICE UNDER ORDER 38 RULE 5 ISSUED BY THE PRINCIPAL SUB COURT THIRUVANANTHAPURAM TO THE TRUE COPY OF THE SECURITY BOND FURNISHED BY THE PETITIONER TRUE COPY OF THE VALUATION CERTIFICATE ISSUED TO THE PETITIONER FROM VENGANOOR VILLAGE OFFICE DATED 19 11 2020 TRUE COPY OF THE SKETCH PRODUCED BY THE PETITIONER ALONG WITH THE SECURITY TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED TO THE PETITIONER BY THE VILLAGE OFFICER VENGANOOR VILLAGE DATED TRUE COPY OF THE ORDER DATED 12.01.2021 IN I.A. NO.4 20 IN O.S.NO. 177 2020 OF THE PRINCIPAL SUB COURT TRUE COPY OF THE AGREEMENT FOR SALE EXECUTED BETWEEN THE PETITIONER AND THE COPY OF THE PLAINT IN O.S.NO.177 OF 2020 ON THE FILE OF THE SUB COURT THIRUVANANTHAPURAM DATED 19.10.2020 COPY OF THE AFFIDAVIT AND PETITION I.A.NO.1 OF 2020 IN O.S.NO.177 OF 2020 OF THE SUB COURT THIRUVANANTHAPURAM COPY OF THE OBJECTION TO THE ATTACHMENT PETITION FILED BY THE DEFENDANT IN O.S.NO.177 OF 2020 BEFORE THE SUB COURT THIRUVANANTAHPURAM DATED :7: COPY OF THE AFFIDAVIT AND PETITION I.A.NO.4 OF 2020 IN O.S.NO.177 OF 2020 OF SUB COURT THIRUVANANTHAPURAM DATED COPY OF THE SECURITY BOND EXECUTED BY THE DEFENDANT IN O.S.NO.177 OF 2020 OF THE SUB COURT THIRUVANANTHAPURAM DATED COPY OF THE OBJECTION FILED BY THE PLAINTIFF AGAINST I.A.NO.4 OF 2020 IN O.S.NO.177 OF 2020 OF THE SUBORDINATE JUDGE S COURT THIRUVANANTHAPURAM COPY OF THE AFFIDAVIT AND PETITION FOR APPOINTMENT OF COMMISSION FILED BY THE COUNTER PETITIONER PLAINTIFF IN I.A.NO.5 OF 2020 IN O.S.NO.177 OF 2020 OF THE SUBORDINATE JUDGE S COURT THIRUVANANTHAPURAM DATED 1.12.2020 COPY OF THE STATEMENT OF OBJECTION FILED BY THE DEFENDANT IN O.S.NO.177 OF 2020 BEFORE THE SUBORDINATE JUDGE S COURT THIRUVANANTHAPURAM DATED 