Kerala High Court
Kumari Sheeba @ Sheeba Sankar vs N. Preetha
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
THURSDAY, THE 16TH DAY OF NOVEMBER 2017/25TH KARTHIKA, 1939
OP(C).No. 2950 of 2017 (O)
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I.A.NO.108/2017 IN OS.NO. 74/2010 of SUB COURT, MAVELIKKARA.
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PETITIONER(S)/PETITIONER:
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KUMARI SHEEBA @ SHEEBA SANKAR,
AGED 58 YEARS, W/O.LATE SANKAR,
RETD.DEPUTY REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM,
RESIDING AT SUBVANI, MAVELI NAGAR, 1ST CROSS ROAD,
CHANGAMPUZHA NAGAR.P.O., THRIKKAKKARA, COCHIN-30.
BY ADV. SRI.RAJIT
RESPONDENT(S)/RESPONDENT:
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N. PREETHA,
AGED 38 YEARS, D/O.SANTHA, RESIDING AT KOMOLEZHATHU
NADANAM, KANNAMANGALAM VILLAGE, MAVELIKKARA TALUK.
BY ADVS. SRI.G.UNNIKRISHNAN
SRI.M.JAYAKRISHNAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16-11-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
TS
OP(C).No. 2950 of 2017 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE ORDER IN IA NO.1250/2016
IN RFA NO.306/2016 OF THIS HONOURABLE COURT
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 11.1.2017 IN IA NO.3014/2016
IN RFA NO.306/2016
EXHIBIT P3 TRUE COPY OF THE IA NO.108/2017 IN OS NO.74/2010 FILED BY
THE PETITIONER HEREIN BEFORE THE SUB COURT,
MAVELIKKARA.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 17.2.2017 IN IA NO.108/2017
IN OS NO.74/2010
EXHIBIT P5 TRUE COPY OF IA NO.1229/2017 SUBMITTED BY THE PETITIONER
HEREIN IN RFA NO.306/2016
EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE
RESPONDENT HEREIN AGAINST EXHIBIT P5 APPLICATION
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 31.7.2017 IN IA NO.1229/2017
IN RFA NO.306/2016.
RESPONDENT(S)' EXHIBITS - NIL
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/TRUE COPY/
PS TO JUDGE
TS
ANIL K.NARENDRAN, J.
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O.P.(C)No.2950 of 2017
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Dated this the 16th day of November, 2017
J U D G M E N T
The petitioner, who is the defendant in O.S.No.74/2010 on the file of the Sub Court, Mavelikkara, and the appellant in R.F.A.No.306/2016 pending before this Court, has filed this original petition under Article 227 of the Constitution of India seeking an order to set aside the order dated 17.2.2017 of the said court in I.A.No.108/2017 in O.S.No.74/2010.
2. On 10.10.2017, when this original petition came up for admission, this Court issued urgent notice on admission by speed post to the respondent. This Court has also ordered that the operation of Ext.P4 order will stand stayed for a period of one month and the said interim order was extended for a further period of two weeks on 9.11.2017.
3. Heard the learned counsel for the petitioner/defendant and also the learned counsel for the respondent/plaintiff.
4. The sole issue that arises for consideration in this original petition is as to the legality or otherwise of Ext.P4 order passed by the court below, whereby the security offered by the O.P.(C)No.2950 of 2017 :-2-:
petitioner/defendant in terms of the order of the Division Bench of this Court in I.A.Nos.3014/2016 and 1250/2016 in R.F.A.No.306/2016 dated 11.1.2017 stands rejected by Ext.P4 order dated 17.2.2017 on the ground that there is no whisper in the said application as to how the petitioner obtained the property, which was offered as security and that the documents of the property offered as security were also not produced. As discernible from Ext.P4 order, there was no representation for the petitioner when the said interlocutory application was taken up for consideration on 17.2.2017. It was in such circumstances that the court below by Ext.P4 order dated 17.2.2017 dismissed I.A.No.108/2017, holding that the property scheduled in that interlocutory application cannot be accepted as security.
5. As discernible from Ext.P1 order dated 16.6.2016 of this Court in I.A.No.1250/2016 in R.F.A.No.306/2016, the petitioner was permitted to offer the property lying attached as security, subject to the satisfaction of the court below. In the said order it was made clear that, if the petitioner offers properties of her late husband Sri.R.Sankar, as part of security, that could also be considered for acceptance by the court below since the decree O.P.(C)No.2950 of 2017 :-3-:
should operate against his estate as well.
6. Subsequently in Ext.P2 order dated 11.1.2017 in I.A.Nos.3014/2016 in R.F.A.No.306/2016, the Division Bench of this Court has clarified as follows ;
"Such being the situation, we are of the considered opinion that what the Division Bench meant by permitting the appellant to offer the properties of her late husband as security cannot be interpreted to mean that the appellant can offer the property bequeathed by her late husband to a person who is not a party to the suit namely his nephew, as security. The Division Bench obviously only meant that the appellant can offer the property bequeathed by late Sankar to her as security. We therefore find no reason or justification to grant the relief prayed for by the appellant and to permit the appellant to offer the property bequeathed by late Sankar to Sri.V.N.Manu as security. No doubt, the appellant will be free to offer any property other than the property bequeathed by the testator, late Sankar, to Sri.V.N.Manu as security. In view of the fact that the time limit stipulated by this Court for furnishing security has expired, we deem it appropriate to grant the appellant one month's time from today to furnish security to the satisfaction of the court below. In the event of failure on the part of the appellant to furnish security within the extended time limit, the order of stay passed by this Court on I.A.No.1250 of 2016 shall stand recalled."
7. In view of Ext.P1 order of this Court, as clarified by Ext.P2 order, the petitioner can offer as security, the property bequeathed to her by late Sri.R.Sankar, other than the property bequeathed by the testator in favour of Sri.V.N.Manu, who is a O.P.(C)No.2950 of 2017 :-4-:
third party to the suit.
8. During the course of arguments, the learned counsel for the respondent/plaintiff would submit that the plaintiff has no objection in the petitioner/defendant offering any property other than that bequeathed by late Sankar to Sri.V.N.Manu, as security in terms of Exts.P1 and P2 orders of this Court.
In such circumstances, this original petition is disposed of setting aside Ext.P4 order dated 17.2.2017 of the Sub Court, Mavelikkara, in I.A.No.108/2017 in O.S.No.74/2010 and the said court is directed to re-consider the said interlocutory application with notice to the petitioner/defendant and also to the respondent/plaintiff. If the property offered by the petitioner/ defendant as security, is one in terms of Exts.P1 and P2 orders of this Court, the court below shall accept the same. Necessary orders shall be passed, as expeditiously as possible, at any rate within a period of two months from the date of receipt of certified copy of this judgment.
Sd/-
ANIL K.NARENDRAN JUDGE ami/20.11.17 //True copy// P.A.to Judge