The petitioner is the third judgment debtor in E.P.No.66/2007 in O.S.No.158/2004 on the files of the Munsiff's Court, Varkala. The 1st respondent is the decree holder and respondents 2 to 5 are the judgment debtors 1, 2, 4 and 5 in the above Execution Petition. O.S.No.158/2004 was instituted by the 1st respondent against the petitioner and respondents 2 to 5 seeking for a decree declaring him as the owner of a Mahindra mini carriage bus bearing registration No.KL-01/F 7450 and permitting him to recover the possession of the said vehicle from the petitioner. The suit was decreed as prayed for. Thereafter, the 1st respondent has filed the Execution Petition to execute the decree. In the Execution Petition, the 1st respondent also sought for recovery of the value of the vehicle from the 3rd respondent. The petitioner filed an objection contending that the decree does not provide recovery of the value of the vehicle from the petitioner. It is also contended that the vehicle, which was the subject matter in the suit, was seized by the Vehicle Inspector in the year 2004 and since then, the said vehicle was kept in the compound of the Kallambalam Police Station. By passage of time, the said vehicle got destroyed due to the continuous exposure to sun light and rain fall. The ruins of the said vehicle are still in the compound of the Kallambalam Police Station. Since he is not in possession of the vehicle and he has no sufficient means to satisfy the decree, the Execution Petition is liable to be dismissed.
2. After considering the objection, the learned Munsiff passed the impugned order rejecting the contentions raised by the petitioner and directed the 1st respondent to take warrant steps against the petitioner. The legality and propriety of this order is under challenge in this revision petition.
3. The learned counsel for the revision petitioner contends that the order under challenge is per se illegal and liable to be dismissed, as the same goes beyond the scope of decree. The learned counsel drew my attention to Ext.P2 decree and submits that the decree was passed allowing to recover possession of the vehicle only and the 1st respondent was not allowed to recover the value of the vehicle as prayed for in the Execution Petition. As such, there is no circumstance to issue warrant against the petitioner for recovery of money. In view of the above submission, the short question that arises for consideration is whether there is any illegality or impropriety in the findings under which the court below rejected the petitioner's objection and directed the 1st respondent to take steps to issue warrant.
4. Going by the decree, it could be seen that as rightly submitted by the learned counsel for the petitioner, no decree had been passed allowing the 1st respondent to realise the value of the vehicle, if he fails to produce the vehicle in execution of the decree. It is the case of the petitioner that he is unable to produce the said vehicle in execution of the decree as the vehicle was seized by the Vehicle Inspector in the year 2004 and since then the said vehicle was kept in the compound of the Kallambalam Police Station and also by passage of time, the said vehicle got destroyed due to continuous exposure to sun light and rain fall. But, he has not produced any evidence in support of his contention. In short, he miserably failed to establish his contention. It was incumbent on him to substantiate the said contention. Whether the petitioner has sufficient means or not was not a question to be considered in view of the decree passed against him. But, the court below went wrong and arrived at a finding that the petitioner has sufficient means and on that premises directed the 1st respondent to take steps to issue warrant. The direction to issue warrant is unsustainable in view of the terms of the decree as well as the objection raised by the petitioner. The learned counsel for the petitioner sought for an opportunity to adduce evidence to substantiate his contention.
5. In the light of the above discussions, the impugned order will stand set aside and the matter is remitted back to the Execution Court to pass order afresh, after affording an opportunity to the petitioner to adduce evidence.
This Civil Revision Petition is disposed of as above.
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(K. HARILAL, JUDGE) Nan/ //true copy// P.S. to Judge