Himachal Pradesh High Court
__________________________________________________________ vs M/S Shriram Transport Finance Company & ... on 28 September, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.393 of 2018 .
Date of Decision No. 28.09.2018 __________________________________________________________ Desh Raj Thakur .....Petitioner Versus M/s Shriram Transport Finance Company & Anr.
.....Respondents Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner : Mr. G.R.Palsra, Advocate.
For the Respondents: Nemo __________________________________________________________ Sandeep Sharma, Judge (oral):
Having regard to the nature of the order this Court proposes to pass in the instant proceedings, it is not necessary to issue notice to the respondent as well as proforma respondent because it would not only cause inconvenience to them, rather they would be unnecessarily burdened to engage counsel to represent them in the instant proceedings.1
Whether the reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 29/09/2018 22:58:33 :::HCHP 2
2. Instant Civil Miscellaneous Petition filed under Article 227 of the Constitution of India, is directed against the .
order dated 5.09.2018 (Annexure P1), passed by the learned Additional District Judge, Kullu, District Kullu, H.P., in Execution Petition No.40 of 2017, whereby learned Court below while disposing of the application filed by respondent No.1 (for short 'Decree Holder') under Order 21 Rule 37 CPC, has issued arrest warrants against the petitioner ( for short 'Judgment Debtor No.1').
3. Facts, as emerge from the record are that Decree Holder filed Execution Petition against the Judgment Debtors before the Executing Court. Since despite issuance of notices, Judgment Debtors failed to make the payment in terms of the judgment and decree sought to be executed by the Decree Holder in the execution petition, an application under Order 21 Rule 37 CPC, praying therein for arrest of Judgments debtors came to be filed on behalf of the Decree Holder.
4. Careful perusal of the impugned order dated 5.9.2018, passed by the Executing Court, clearly suggests that ::: Downloaded on - 29/09/2018 22:58:33 :::HCHP 3 despite sufficient opportunities afforded to the Judgment debtors, judgment debtors failed to satisfy the decree passed .
by the learned trial Court in favour of the Decree Holder. In the execution proceedings, judgment debtors by way of filing reply to the application filed under Order 21 Rule 37 CPC before the Court below submitted that since he (JD No.1) remained ill, he could not manage the amount. He further submitted before the Executing Court that he is the owner of the Tipper No. HP33A7250 and Decree Holder can attach and sell this Vehicle for the recovery of the decreetal amount.
However, learned Court below while rejecting the aforesaid submission made on behalf of the JD No.1, arrived at a conclusion that though JD No.1 is the owner of the tipper, but he has not filed the copy of RC with the reply as such further action qua the attachment of the vehicle cannot be taken.
Learned Court below further observed that JD No.1 can sell the said vehicle and repay the awarded amount to the Decree Holder.
::: Downloaded on - 29/09/2018 22:58:33 :::HCHP 45. Mr. G.R. Palsra, learned counsel representing the petitioner, while inviting attention of this Court to Screen .
Report of Vehicle, dated 23rd June,2016 (Annexure P3), contended that though JD No.1 is the owner of the vehicle, but hypothecation of the vehicle is in he name of respondent No.1 i.e. Shriram Transport Finance Company Limited and as such, he could not sell the vehicle. Mr. Palsra, further contended that since vehicle in question stands hypothicated in the name of respondent No.1(DH), same can be sold by respondent No.1 and amount received from the sale can be adjusted towards the decreetal amount.
6. Though, having perused the reply filed by JD No.1 before the executing Court visavis impugned order, this Court sees no illegality and infirmity in the findings returned by the learned Court below that since no Registration Certificate has been placed on record by JD No.1, no steps can be taken for attachment of the vehicle, but this Court having persued the Screen Report of Vehicle (Annexure P3), is of the view that it would be in the interest of justice in case the ::: Downloaded on - 29/09/2018 22:58:33 :::HCHP 5 respondent No.1(DH) is permitted/directed to sell the tipper owned by JD No.1 and adjust the sale proceed thereof towards .
the decreetal amount. No doubt JD No.1 is the sole proprietor of the tipper in question, but definitely he cannot sell the same till the time vehicle in question is hypothicated in the name of respondent No.1(DH)
7. Consequently, in view of the above, the present petition is allowed and impugned order dated 5.9.2018 is set aside. Larned Court below is directed to pass fresh order taking into consideration Screen Report of Vehicle (Annexure P3) dated, 23rd June, 2016, which clearly suggests that tipper in question owned by JD No.1 stands hypothicated with respondent No.1.
8. Mr. G.R.Palsra, learned counsel undertakes to cause presence of the petitioner before the learned Court below on 8 th October, 2018, to enable it to consider and decide the matter afresh in the light of the instant order passed by this Court.
::: Downloaded on - 29/09/2018 22:58:33 :::HCHP 69. Registrar (General) is directed to apprise the learned Court below with regard to passing of the instant .
order, to enable it to do the needful within stipulated period.
However, it is made clear that in case JDs fails to appear before the learned Court below on the given date i.e. 8.10.2018, impugned order dated 5.9.2018 passed by the Executing Court shall automatically revive.
Pending application(s), if any also stand disposed of.
(Sandeep Sharma), Judge 28th September,2018 (shankar) ::: Downloaded on - 29/09/2018 22:58:33 :::HCHP