A party should be granted an opportunity to provide an undertaking against property encumbrance prior to any attachment order being finalized.

Devan Ramachandran , J. The petitioner impugns the order of the learned Family Court, Ernakulam in I.A.No.2/2024 in OP No.379/2024, whereby, her property has been attached before the judgment, asserting that she was willing to give an undertaking before the said Court that she would not encumber it, or cause any damage to it.

2. Sri.Rajesh Sivaramankutty – learned counsel for the petitioner, argued that, when his client was only ready to offer the afore undertaking, it was unnecessary for the Trial Court to have ordered attachment before judgment; and argued that, therefore, the impugned order is forensically incorrect.

3. However, Smt.Liffy P.Francis - learned counsel for the first respondent, submitted that the afore assertions are not correct because, the petitioner was unwilling to give any undertaking before the learned Family Court; and also because, according to his client, the property remains encumbered to a bank. He, therefore, prayed that Ext.P3 be left uninterdicted.

4. The afore narrative would surely show that it is unnecessary for this Court to enter into the controversy at this stage because, when the petitioner says that she is willing to give an undertaking before the Trial Court in the form of an affidavit, that she will not encumber or deal with the property further, certainly such an opportunity ought to be given. Whether this was done by her and whether such an offer was made before the Trial Court, are issues which are beyond us at this stage; but we are fully aware that the respondent takes the stand that this was never done. Therefore, we see no reason why such an opportunity should not be given to the petitioner, but leaving it to the learned Family Court to take a decision on it, adverting to the contra-assertion of the respondents that the property is already encumbered.

5. In the afore circumstances, we allow this Original Petition, leaving liberty to the petitioner to move the learned Family Court, seeking modification of Ext.P3 order, on the strength of an affidavit to be sworn to by her to the effect that she will not encumber the property or cause any damage thereon;

and if this is done within a period of one month from the date of receipt of a copy of this judgment, the same will be considered by the said Court, after affording necessary opportunity to both sides, thus culminating in an appropriate order on such application without any avoidable delay.

Needless to say, we have not entered into the merits of any of the rival contentions, including as to whether the attachment before judgment is valid or otherwise and these are all left open to be decided by the learned Family Court through the above ordered exercise.