IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 Crl.MC.No. 3501 of 2008() ------------------------- CMP.1361/2008 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... PETITIONER(S): PETITIONERS -------------------------- 1. PUTHU HAJUMMA, W/O. AMMAD HAJI, THATTANTAVIDA HOUSE, P.O.KURINHALIYOD. 2. MOOSA HAJI, S/O. AMMAD HAJI, THOTTANTAVIDA HOUSE,P.O.KURINHALIYOD. BY ADV. SRI.C.VALSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT(S): --------------- 1. K.M.ANDY, S/O. CHEKKOTTY KANIYANKANDIYIL HOUSE, P.O.NADAKKUTHAZHA, VADAKARA. 2. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA COCHIN - 31. PUBLIC PROSECUTOR SRI. AMJAD ALI. SRI.SUNNY MATHEW FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No.3501 of 2008 ------------------------------------------------- Dated this the 17th day of November, 2008 ORDER There is a dispute between the petitioners and the 1st respondent herein as to who is entitled for possession of a stage carriage bearing registration No.KL-11C/9549. The parties were before this Court in Crl.M.C.Nos.166 & 205/07. By a common order dated 1.2.07 (a copy of which is produced as Annexure-I), this Court had disposed of those Crl.M.Cs. Later Annexure-III judgment was passed by the Subordinate Judge of Vadakara. On the basis of the findings in Annexure- III judgment of the civil court, the petitioners applied to the learned Magistrate to direct the 1st respondent herein to hand over the vehicle to them. That application was disposed of by the learned Magistrate by Annexure-VI order. The petitioners are aggrieved by the said order. Crl.M.C. No.3501 of 2008 -: 2 :- 2. As indicated earlier, the dispute is about the ownership and right to possession of the said bus. As per the judgment and decree of the civil court, it is found unambiguously that the legal heirs of Ammad Haji i.e., the petitioners herein are entitled to custody of the bus from the 1st respondent herein. 3. This Court by Annexure-I order had held clearly that the 1st respondent herein can continue to keep possession of the vehicle subject to interim or final orders that may be passed by the civil court in O.S.No.94/06. The final order/judgment in O.S.No.94/06 is Annexure-III in which there is a categoric finding that the legal heirs of Ammad Haji i.e., the petitioners herein are entitled to custody of the bus from the 1st respondent herein. 4. It therefore follows that when the petitioners applied for custody of the vehicle, the learned Magistrate must have directed release of the vehicle to the petitioners herein. The learned Magistrate by Anneuxre-VI order has not done the same. The order is thus clearly wrong. Notwithstanding the fact that an earlier interim order was passed under Sec.451 Cr.P.C., the learned Magistrate must have modified the order and directed release of the bus to the petitioners. That was the clear intendment in Annexure-I order. The learned Magistrate was Crl.M.C. No.3501 of 2008 -: 3 :- obviously wrong in not directing release of the vehicle to the petitioners as held in Annexure-III. Annexure-VI order therefore clearly warrants interference. 5. However, the learned counsel for the 1st respondent points out, and the learned counsel for the petitioners fairly concedes that an appeal has been preferred against Annexure-III judgment and an interim order of stay has been issued by the Additional District Court, Vadakara. The learned counsel for the 1st respondent submits that in view of the order of stay, Annexure-III judgment cannot now confer on the petitioners any right to immediately claim possession of the vehicle. I agree with the learned counsel for the 1st respondent solely on the basis of the admitted subsequent development that Annexure-III judgment stands stayed now by the learned Additional District Judge, Vadakara. 6. There shall, in these circumstances, be a subsequent direction to the learned Additional District Judge, Vadakara, to dispose of the challenge against Annexure-III as expeditiously as possible, at any rate, within a period of three months from this date. In such appeal, the learned Additional District Judge, Vadakara, shall enter a specific finding as to who is entitled to the custody of the bus. The learned Magistrate shall simply Crl.M.C. No.3501 of 2008 -: 4 :- follow that finding and release the vehicle to whosesoever is found to be entitled to such possession. To provide against later decisions in challenge against the verdict of the Additional District Judge, Vadakara, the learned Magistrate shall release the vehicle to whosesoever is found to be entitled to custody of the vehicle by the Additional District Judge on such party executing a bond for Rs.1.5 lakhs (both counsel are in agreement that that can be reckoned as the present value of the vehicle) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. If the verdict is in favour of the petitioners herein, the 1st respondent shall surrender the vehicle before the learned Magistrate within a period of 10 days from the date of receipt of a copy of the judgment/order. 7. With the above observations/directions, this Crl.M.C. is allowed in part. (R. BASANT, JUDGE) Nan/ Crl.M.C. No.3501 of 2008 -: 5 :-