IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 CRP.No. 992 of 2006() --------------------- AGAINST THE ORDER DATED 12/10/2006 IN IA.1333/1996 IN OS.71/1995 of PRL.SUB COURT,KOTTAYAM .................... REVN. PETITIONERS: PLAINTIFFS/ 1ST AND 2ND COUNTER PETITIONERS IN I.A ------------------------------------------------------------------------------------------------------------------ 1. VARGHESE MATHEW, MUNDANIKAL HOUSE, MEENADOM KARA, MEENADOM VILLAGE, KOTTAYAM. 2. SUNIL MATHEW, MUNDANIKAL HOUSE, MEENADOM KARA, MEENADOM VILLAGE, KOTTAYAM. BY ADV. SRI.V.P.MOHAMMED NIYAZ RESPONDENTS: DEFENDANTS/PETITIONERS & 3RD COUNTER PETITIONERS --------------------------------------------------------------------------------------------------- 1. THE INVESTMENT TRUST OF INDIA LTD., REP. BY MR.P.S.BALASUBRAMANIAN, A.I.DAMAYANTHY APARTMENTS, 17TH SOUTH MATHA STREET, NUNGAMPAKKAM, MADRAS-600 834. 2. ROY THOMAS, S/O.THOMAS, KANDUNCHIRA HOUSE, MEENADAM KARA, KOTTAYAM. ADV. SRI.K.R.SUNIL FOR R.1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/12/2011, THE COURT ON 20/12/2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS J., - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No.992 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of December, 2011 ORDER The revision petitioners are the plaintiffs and 2nd respondent is the defendant in O.S. No.71 of 1995 on the file of the Principal Sub Court, Kottayam. 1st respondent is the claim petitioner in I.A. No.1333 of 1996 in O.S. No.71 of 1995 and the 2nd respondent is the 3rd counter petitioner and revision petitioners are the 1st and 2nd counter petitioners therein. 2. The facts as stated in the revision petition is as follows. The suit was filed by the plaintiffs against the defendant/2nd respondent herein for realisation of an amount of Rs.91,891.41 due to them from the defendant. Along with the suit the plaintiffs filed an I.A. No.319 of 1995 under Order 38 Rule 8 of Civil Procedure Code for attachment before judgment, a 1989 model Leyland lorry bearing Registration No.KL5 2286, which was owned and in possession of the defendant. The Court below allowed the I.A. and C.R.P. No.992 of 2006 :2: the said lorry was attached and the property was in the custody of the Court. Subsequently on March 1996, after one year of the order of attachment, the 1st respondent herein filed an I.A. No.1333 of 1996 before the Court below for lifting the attachment over the lorry claiming that he is the owner of the vehicle and the defendant is only the hirer of the said vehicle. The 1st respondent/claim petitioner further contended that on 12.1.1994 defendant executed a hire purchase agreement for a consideration of Rs.2,82,500/- with respect to the said vehicle. Thereafter the defendant defaulted repayment of monthly instalment and an amount of Rs.2,42,519/- was due to the 1st respondent. Hence he is entitled to repossess the vehicle and was not liable to be attached for the debt of the defendant. 3. The plaintiffs/revision petitioners filed counter against the said I.A. denying the alleged hire purchase agreement between the 1st and 2nd respondents/ defendants. The said I.A. was filed by the claim petitioner colluded with the defendant to help the defendant to escape from the liability of the plaintiff. Thereafter without C.R.P. No.992 of 2006 :3: passing any order in the said I.A., the Court below decreed O.S. No.71 of 1995 on 30.7.1998. In the meanwhile the said lorry was sold in public auction and the amount was deposited in the Court below. After the disposal of O.S., the Court below heard the I.A., and passed the order after considering the evidence adduced by both parties. 4. From the side of the 1st respondent/ claim petitioners Pws1 and 2 were examined and Exts.A1 to 9 were marked. The respondent produced Ext.B1 document. No oral evidence was adduced from the side of the respondent. Exts.X1 and X1(a) are Court Exhibits. 5. The Court below on considering the matter allowed I.A. No.1333 of 1996 and the attachment was raised. Against that order, respondents 1 and 2 filed this C.R.P. 6. Heard learned counsel for the revision petitioners and learned counsel for the first respondent. 7. At the time of argument, the learned counsel for the revision petitioners raised the following contentions. C.R.P. No.992 of 2006 :4: (i) The Court below erred in finding that the 1st respondent/claim petitioner is the owner of the vehicle on the basis of Ext.A3 hire purchase agreement, even after the same is found inadmissible in evidence for want of sufficient stamp. (ii) The Court below ought to have found that Ext.A3 agreement has not properly proved. Neither the executants of the said agreement nor the witness on the same were examined to prove the same. (iii) The Court below erred in ignoring Ext.B1 document dated 2.2.95, the registration particulars of the said vehicle issued by the R.T.O. office which proves that there was no liability on the property and there was no charge on the property at the time of the attachment of the same. The learned counsel for the first respondent supported the order of the Court below. 8. Section 51 of the Motor Vehicles Act provides that when an application for registration of a motor vehicle which is held under a hire purchase agreement or hypothecation agreement is C.R.P. No.992 of 2006 :5: made, the registering authority shall make an entry in the certificate of registration regarding the existence of the said agreement. Ext.X1(a) is the relevant entry in respect of the vehicle in the 'B' register kept in the R.T.O. Office, Kottayam. As observed by the learned Sub Judge, the non-mentioning about the hire purchase agreement in Ext.B1 is not a reason to discard the case of the petitioner in the I.A. that there was hire purchase agreement with regard to the vehicle. Ext.A5 is the copy of registration particulars of the vehicles which shows that Ext.A3 hire purchase agreement was noted in the R.C. book on 14.1.1994. Therefore the learned Sub Judge is justified in finding that the claim petitioner had right over the vehicle when the attachment was made. Hence this C.R.P. is liable to be dismissed as it is without any merits. Accordingly this C.R.P. is dismissed. There is no order as to costs. M. L. JOSEPH FRANCIS, (JUDGE) dl/