Aruna K.C vs Akhilan Asari

P.G. Ajithkumar, J.

Respondents 1 and 2 in O.P.No.1574 of 2014 on the files of the Family Court, Thiruvananthapuram are the petitioners. They filed this Original Petition under Article 227 of the Constitution of India seeking to set aside Ext.P4 and to allow I.A.No.124 of 2022, which they have filed in O.P.No.1574 of 2022. As per Ext.P4 order dated 07.01.2023, the Family Court dismissed I.A.No.124 of 2022.

Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.

The respondent filed O.P.No.1574 of 2014 seeking a decree of return of gold ornaments and compensation. The Family Court, Thiruvananthapuram decreed the said original petition as per the judgment dated 23.12.2021. The decree directs the appellants to pay Rs.4 lakhs together with interest at the rate of 6% per annum from the date of the petition till realisation. They have filed Mat.Appeal No.554 of 2022 assailing the said judgment and decree. They filed I.A.No.1 of 2022 in that appeal seeking stay of execution of the decree. This Court as per the order in that interlocutory application granted stay on the condition of the petitioners' furnishing security for the entire decree debt before the Family Court, Thiruvananthapuram, within a period of three weeks. They accordingly furnished security by producing title deed of the 2nd petitioner in respect of 6.250 cents of land where a residential building is situated, together with its valuation certificate and tax receipt. The respondent opposed receipt of the said property as security. The Family Court, after considering the rival contentions, refused to accept the security and the petition filed by the petitioners was dismissed as per Ext.P2 order.

The learned counsel appearing for the petitioners would submit that the 2nd petitioner has half right in the property and the building, which is worth much more than the debt due under the decree, and therefore, the Family Court ought to have accepted the same as sufficient security. Amount due under the decree, including interest is Rs.5,84,922/-; whereas the property is worth much more than that. The fact that parents of the 2nd petitioner have life interest in the property does not divest his right in the property, and it can certainly be sold in execution of the decree. It is further submitted that the petitioners have no other property and therefore if the said property is not accepted as security, they will be put to untold hardship.

The learned counsel appearing for the respondent, on the other hand, would submit that when a minor also has right in the property offered as security and the whole of the property is subject to the life estate of the 2nd petitioner’s parents, there is no scope for proceeding against the said property for realisation of the decree debt. Further, the petitioners did not state that they have no other property. The learned counsel would submit that in such circumstances, the Family Court rightly had dismissed I.A.No.124 of 2022.

The impugned decree enables the respondent to realise an amount of Rs.4 lakhs along with its interest. Total amount due as per the decree has been computed as Rs.5,84,922/-, which is not disputed by the respondent. The security to be furnished by the petitioners is to secure realisation of the said amount. Even though the petitioners filed appeal challenging the said decree, they are bound to furnish security for the amount due under the impugned decree. The question is whether the property offered as security can be accepted or not as sufficient security.

It is stated in Ext.P2 order that value of the land would come to Rs.11,01,100/- and the building would fetch Rs.5,00,000/-. The petitioners would explain that the value of the land was computed based on its fair value and its market value is much more than that. When the property stands in the name of the 2nd petitioner and his minor daughter, his right is only upon half of it. It cannot be said that since the minor has half right in the property, the 2nd petitioner cannot have independent right to the other half of the property. True, subject to the life interest of his parents alone, he can exercise his right of ownership in the property. However, when the petitioners do not have any other property and an appeal challenging the decree in question is pending, it will be unjust if the said property is refused to be accepted as security. Ultimately the purpose of receiving security is to ensure realisation of the amount due under the decree. The decree holder is none other than the wife of the 2nd petitioner. Half of the property belongs to the daughter of the 2nd petitioner. If so, there is no reason why the respondent could not proceed against the share of the 2nd petitioner in the said property for realisation of the decree debt. Hence, we are of the view that the Family Court ought to have accepted the property offered by the petitioners as sufficient security. We are of the view that Ext.P4 order is therefore liable to be set aside.

The Original Petition is allowed and Ext.P4 order is set aside. The Family Court will accept the property offered by the petitioners as sufficient security in terms of the order dated 19.10.2022 in I.A.No.1 of 2022 in Mat.Appeal No.554 of 2022.