IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 CRP.No. 2257 of 2002() --------------------------------- (AGAINST E.A.. NO.121 OF 1996 IN E.P.. NO.156/1994 IN OS.305/1974, SUB COURT, PALA .................... REVN. PETITIONER: IIIRD PARTY -------------------------------------------- KURIAN JOSEPH, POOVATHINKAL, PAYPPAR P.O., ANTHINADU VIA., PALA. BY ADV. SRI.SABU GEORGE RESPONDENTS: PETITIONER ---------------------------------------- P.J.JOSEPH, PADAVIL, KIZHAPARAYAR, EDAMATTOM. BY ADV. SRI.M.C.SEN (SR.) SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ALONG WITH E.F.A. NO.17 OF 2002 ON 1.2.2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- E.F.A.No.17 of 2002 & C.R.P.No.2257 of 2002 ------------------------------------------------- Dated, this the 1st day of February, 2008 JUDGMENT These two proceedings arise from a common order passed by the executing court allowing E.A.Nos.121/1996 and 97/1997 in E.P.No.156/1994 in O.S.No.305/1974 by which the executing court had issued a direction to the appellant who was not a party to the suit to produce vehicle bearing registration No.KLQ 3152. The case has got a chequred career. The story starts with filing a complaint by first respondent against one Chacko Joseph, Vadakkel Veedu. The jeep bearing registration No.KLQ 3152 originally belonged to Chacko Joseph. First respondent purchased the same. He filed a complaint alleging that the person who sold the vehicle to him had forcibly taken away the same. Sub Magistrate, Pala took cognizance on the complaint, registered the case as C.C.No.40/1973. Vehicle was seized. Accused as well as the complainant filed petitions claiming interim custody of the vehicle. Sub Magistrate passed an order regarding interim custody. That order was challenged before this Court in Crl.R.P. No.134/1973. This Court set aside the order passed by the Sub Magistrate and sent back the case to the Sub Magistrate's Court with a direction that within ten days of receipt of the records by that court the complainant should furnish the name of a garage within the jurisdiction of that court wherein the jeep was to be kept. This Court had EFA No.17/2002 & CRP No.2257/2002 2 further directed that the vehicle must be kept in the garage in the presence of an officer of the court and the key of the garage should be entrusted with the court. Accused was also given an option to suggest a garage in case the complainant failed to find out a garage. The vehicle was kept in the garage of a person by name P.K.Sebastian. What exactly was the final result of the complaint is not discernible from the records. While the vehicle was in the custody of the court, first respondent filed O.S.No.305/1974 for declaration of his title and possession. That suit was decreed. First respondent was declared as the owner of the jeep and he was found entitled to get possession of the same. He was allowed to take the vehicle from the custody of the Sub Magistrate, Pala as the same was seized as a Material Object in C.C.No.40/1973. The first respondent filed a petition before the Magistrate. But the vehicle vanished into the thin air. At the request of the Magistrate the Sub Inspector of Police conducted an enquiry and reported that the whereabouts of the vehicle could not be traced out. In the meanwhile the plaintiff/decree holder filed E.P.No.156/1994 for executing the decree. Initially judgment debtor and official receiver were made as respondents. Consequent to the death of the judgment debtor his widow and children were impleaded as additional judgment debtors. The prayer in the Execution Petition was to issue a direction to Shri P.K.Sebastian, proprietor of Automobile Garage, Pala to produce the vehicle. Vehicle could not be traced out. Thereafter respondent filed a petition contending that though the name of the person who took the vehicle for interim EFA No.17/2002 & CRP No.2257/2002 3 custody was given as P.K.Sebastain it was actually the appellant who took the vehicle and kept the same in the garage. So it was prayed that a direction may be issued to the appellant to produce the vehicle. For the very same relief respondent had filed E.A.No.97/1997 also. Appellant appeared and filed objection. Sub Judge directed the appellant to produce the vehicle by common order passed in E.A.Nos.121/1996 and 97/1997. Challenging the order passed in E.A.Nos.121/1996 and 97/1997 the appellant filed C.R.P.No.2257/2002 and E.F.A.No.17/2002 respectively. Since both these matters arise from execution of the same decree the Execution First Appeal and Civil Revision Petition were consolidated, heard and disposed of by a common judgment. 2. Learned counsel for the appellant has strenuously argued before me that there is absolutely no material to establish that it was the appellant who was entrusted with the custody of the vehicle during the pendency of criminal case. It is argued that before passing the impugned orders the executing court ought to have considered whether there is any material to establish that appellant mis- represented to criminal court that he was P.K.Sebastian. It is argued that no enquiry was conducted and the executing court but assumed so many things. 3. A perusal of the order shows that neither the decree holder nor the judgment debtor adduced any evidence. The appellant/garnishee also did not adduce any evidence. The vehicle bearing registration No.KLQ 3152 was taken into custody by the police and produced before the Sub Magistrate Court, Pala in EFA No.17/2002 & CRP No.2257/2002 4 connection with C.C.No.40/1973. The custody of the vehicle was entrusted with the proprietor of Automobile Garage by name Shri P.K.Sebastian. When the civil court made a request to the Magistrate to send the vehicle to civil court it was reported that the vehicle was missing. The Magistrate directed the Sub Inspector of Police to conduct an enquiry in the matter and accordingly the Sub Inspector of Police conducted and enquiry and submitted a report dated 23.1.1996 stating that no information could be obtained regarding the whereabouts of jeep bearing registration No.KLQ 3152. The learned Sub Judge came to the conclusion that the available evidence would show that the garnishee gave his name as P.K.Sebastian though his real name was Kurian Joseph @ Lissykunju. 4. I have carefully gone through the records. The decree holder had asserted that it was the appellant who actually took the vehicle in interim custody giving his name as P.K.Sebastian. This averment was denied by the appellant. Appellant had filed objection contending that he was working as foreman of the automobile garage by name Kerala Engineering Corporation which was owned by one Thomas Mathew, Kayyalakkakathu from 1973 to 1975. It was also averred that the decree holder along with some others brought a jeep to that workshop and kept the same in a room of the workshop and took away the key. He had no possession or control over the vehicle and he never took interim custody of any vehicle from the court. It was also averred that he had no knowledge about how the vehicle kept in the workshop vanished from the scene. It is seen that the EFA No.17/2002 & CRP No.2257/2002 5 decree holder had filed E.A.No.177/1997 to implead the appellant as the additional 6th respondent in the E.P. and Thomas Mathew as the additional 7th respondent. That petition was allowed. But in the cause title of order their names were not written. It is seen that Thomas Mathew had also filed a counter affidavit in which he had admitted that there was a workshop in his property. It was averred that the appellant never worked there as a workman. It was also averred that subsequently the workshop conducted in the property was shifted and the owner of the garage shifted all the articles from the property of the 7th respondent. As already stated nobody gave oral evidence. Though some documents were produced, those documents were not marked and admitted in evidence. So the reasoning of the court below that there was material to show that it was the appellant who took the vehicle on interim custody from the Magistrate Court is not supported by any evidence. Considering all aspects of the matter, I am of the view that it is only just and proper to set aside the orders passed by the executing court and direct the Sub Judge to conduct an enquiry under Order XXI Rule 46 of Civil Procedure Code and pass appropriate orders. 5. It is seen that the learned Magistrate has not taken any action in this matter. He had failed to note that in pursuance of the order passed by this Court in Crl.R.P.No.134/1973 the vehicle was kept in a garage belonging to a person by name P.K.Sebastian under the supervision of the Court. In fact the vehicle ought to have been kept under the custody of the court It is very unfortunate that the EFA No.17/2002 & CRP No.2257/2002 6 Magistrate had not taken any step to find out as to who was the person who really took the vehicle in interim custody from the court and what happened to that vehicle. When a material object involved in a criminal case was seized and kept under the custody of the court, the court has got a duty to see that the material object is kept under proper custody and ultimately given back to the real owner. So whatever be the result of enquiry of the civil court a duty is cast upon the Magistrate to find out the whereabouts of the vehicle as well as the person who kept the same in pursuance of the order. It is to be noted that this court directed that an officer of the court should be present in the garage in which the vehicle was ordered to be kept and the key of the garage was directed to be produced before the court for being kept under safe custody. So the vehicle was actually under judicial custody. The learned Magistrate ought to have taken steps to file a complaint before the Police and see that the actual culprits are punished in accordance with law. If the culprits are allowed to escape people will lose faith in the system. So there will be a direction to the Judicial First Class Magistrate, Pala to take steps to file a complaint before the Police in accordance with law. Chief Judicial Magistrate, Kottayam shall also take every possible steps to bring the culprits to book . After filing of the complaint the learned Magistrate shall forward a report to the Chief Judicial Magistrate who in turn shall take up the matter with the Director General of Police and make a request to pass appropriate orders for the investigation of the case, if necessary, by constituting a special team for enquiry. EFA No.17/2002 & CRP No.2257/2002 7 The Police shall conduct an effective investigation resorting scientific methods. The learned Magistrate as well as Chief Judicial Magistrate shall bear in mind the importance of the matter and take every possible efforts in accordance with law to trace out the vehicle as well as the person/persons who took the vehicle which was under the custody of the court. In the result, the Execution First Appeal and Civil Revision Petition are allowed. The orders passed by the executing court allowing E.A.Nos.121/1996 and 97/1997 are hereby set aside. Those Execution Applications are remanded to the executing court for fresh disposal in accordance with law after conducting proper enquiry. The parties shall be given a reasonable opportunity to adduce further evidence, if so advised. A copy of this judgment shall be forwarded to the Chief Judicial Magistrate, Kottayam and Judicial First Class Magistrate, Pala for taking necessary action in accordance with law, as indicated in this judgment. Parties shall appear before the executing court on 10.3.2008. C.M.P.No.3182/2002 in E.F.A.No.17/2002 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks EFA No.17/2002 & CRP No.2257/2002 8 K.PADMANABHAN NAIR, J. E.F.A.No.17 of 2002 & C.R.P.No.2257 of 2002 JUDGMENT 1st February, 2008.