G.Girish, J
1. The orders passed by the Sub Court, Karunagappally in I.A.No.2/2023 and I.A.No.5/2024 in O.S.No.56/2023, in the matter of lifting the conditional
attachment ordered in the said suit by accepting the security offered by way of immovable property by the 1st defendant therein, are under challenge
in this F.A.O.
2. The suit was one for realisation of an amount of Rs.31,68,000/- said to have been advanced by the plaintiff to the 1st defendant for the purchase of
a house. The plaintiff would allege that the plaint B schedule property, which was the house and appurtenant land agreed to be given to her, was
illegally sold by the 1st defendant to third parties in violation of the terms of agreement. It is stated that the plaintiff has been residing in the plaint C
schedule property which comprises of a newly constructed house and appurtenant land, as orally permitted by the 1st defendant when the 1st
defendant failed to complete the construction in plaint B schedule property within the agreed time frame. I.A.No.2/2023 filed by the plaintiff for
conditional attachment at the time of institution of the suit, was allowed by the learned Sub Judge, and the plaint A schedule property belonging to the
1st defendant was conditionally attached with the option given to the 1st defendant to furnish security for the plaint amount. Thereafter, the defendant
offered the plaint C schedule property as security for the plaint amount, and filed I.A.No.5/2024 for lifting the conditional attachment. The plaintiff
opposed the above application stating the reason that the plaint C schedule property is paddy land as per the revenue records, and hence the said
property inclusive of the building situated therein would not be sufficient to satisfy the decree which may be passed in the suit. The learned Sub Judge,
by the impugned orders, held that the apprehension of the plaintiff about the possibility of demolition of the building situated in the plaint C schedule
property in any action taken by the authorities for unauthorised construction being done in paddy land, was only a remote contingency, and that Rules
are in force for conversion of paddy land for residential purposes. The learned Sub Judge further observed that the Commission Report prepared in
this case disclosed the existence of the plaint C schedule property bounded by compound wall on all sides, in a residential area. The assignment of
door number by the Grama Panchayat concerned, is also noted in the impugned order. It is aggrieved by the aforesaid verdict of the learned Sub
Judge in I.A.No.2/2023 and I.A.No.5/2024 that the present appeal has been preferred by the plaintiff in that suit.
3. Heard the learned counsel for the appellant and the learned counsel for the 1st respondent.
4. The learned counsel for the appellant would contend that the trial court went wrong in accepting the security of a land shown in the revenue
records as paddy land, and the building constructed therein, for lifting the conditional attachment ordered over plaint A schedule property belonging to
the 1st defendant. The learned counsel for the 1st defendant, per contra, would contend that though the plaint C schedule property is shown in the
revenue records as paddy land, the above error has been sought to be corrected by filing application before the authority concerned. It is further
submitted that by all counts of probability, the error crept in the revenue records in the above regard would be corrected within a short period since the
1st defendant had submitted the necessary applications before the authorities concerned to that end.
5. It remains a fact that even today the plaint C schedule property stands depicted in revenue records as paddy land, though it exists, completely
bounded by compound wall, in a residential area. True that the 1st defendant has produced for the perusal of this Court, the copy of the application
submitted before the authorities concerned for making correction of the above entry in the revenue records. The 1st defendant also would rely on
Annexure-R1(f) certificate issued by the Agricultural Officer of Mainakappally stating that as per the data bank, the plaint C schedule property exists
as reclaimed land for the past 15 years. But, till the authorities concerned take a decision to correct the entry in the revenue records about the nature
and character of plaint C schedule property as garden land, it is not possible to say that the building constructed in the said property is an authorized
structure. When viewed in the above perspective, it is not possible to say at present that the plaint C schedule property would fetch a value sufficient
to satisfy a decree that may be passed in the suit. Therefore, the apprehension of the plaintiff about the insufficiency of security offered by the 1st
defendant, is well-founded. In such a situation, the order passed by the learned Sub Judge accepting the plaint C schedule property offered by the 1st
defendant as security, cannot be said to be correct. There is no place for assumptions about the chances of the plaint C schedule property getting
regularized as a garden land in future, and thus, rendering the said property sufficient in terms of value to satisfy the plaint claim. Of course, if the 1st
defendant succeeds in making the aforesaid change in revenue records about the nature of the plaint C schedule property in future, he would be
entitled to file a fresh application before the Trial Court to accept the said property as security and to release the attachment over the plaint A
schedule property. Thus, the orders under challenge are liable to be interfered to the above extent.
In the result, the F.A.O is disposed of as follows:
(i) The orders passed by the Sub Court, Karunagappally in I.A.No.2/2023 and I.A.No.5/2023, accepting the plaint C schedule property as security and
lifting the attachment over plaint A schedule property, subject to execution of necessary bond for the security, are hereby set aside.
(ii) The conditional attachment over plaint A schedule property will continue till the 1st defendant offers sufficient security to satisfy a
decree that may be passed in favour of the plaintiff in the suit concerned.
(iii) It is made clear that the 1st defendant will be entitled to file a fresh application to accept the plaint C schedule property as security and to release
the conditional attachment over plaint A schedule property, once the necessary entries are made in the revenue records, correcting the nature of plaint
C schedule property as lawfully converted garden land.
