Andhra Pradesh High Court - Amravati

Byrapuram Abdul Samad, Kurnool ... vs Pinjari Chand Basha, Kurnool Dist ... on 26 April, 2023

       HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
                                  ****
            CIVIL REVISION PETITION NO.3062 OF 2015
Between:
Byrapuram Abdul Samad, S/o. Byrapuram Abdul Hamid, 60
years, Muslim, Business, R/o.Nandikotkur Town and
Mandal, Kurnool District, Andhra Pradesh.
                                          ... Petitioner/Decree-holder
                            Versus
1.    Pinjari Chand Basha, S/o. Pinjari Shalimiah,
      Muslim, 50 years, Business, H.No.22/263B, Valmiki
      Nagar, R/o.Nandikotkur Town and Mandal, Kurnool
      District. (Judgment-debtor)

2.    Shriram Transport       Finance         Limited,   Kurnool.
      (Financier)

3.    Hinduja     Laylond    Finance          Limited,   Kurnool
      (Financier)
      (R.3 is not necessary party in this CRP)
                                                            ...Respondents
                                *****

DATE OF ORDER PRONOUNCED                  :        26.04.2023.

SUBMITTED FOR APPROVAL:

           HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers
   may be allowed to see the Order?                      Yes/No

2. Whether the copy of Order may be
   marked to Law Reporters/Journals?                     Yes/No

3. Whether His Lordship wish to see the
   fair copy of the Order?                               Yes/No




                                              _____________________________
                                               B.V.L.N.CHAKRAVARTHI, J
      * HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
          + CIVIL REVISION PETITION NO.3062 OF 2015
                            % 26.04.2023
# Between:
Byrapuram Abdul Samad, S/o. Byrapuram Abdul Hamid, 60
years, Muslim, Business, R/o.Nandikotkur Town and
Mandal, Kurnool District, Andhra Pradesh.
                                          ... Petitioner/Decree-holder
                            Versus
1.    Pinjari Chand Basha, S/o. Pinjari Shalimiah,
      Muslim, 50 years, Business, H.No.22/263B, Valmiki
      Nagar, R/o.Nandikotkur Town and Mandal, Kurnool
      District. (Judgment-debtor)
2.    Shriram Transport       Finance     Limited,   Kurnool.
      (Financier)
3.    Hinduja     Laylond    Finance      Limited,   Kurnool
      (Financier)
      (R.3 is not necessary party in this CRP)
                                                        ...Respondents
! Counsel for the Revision
  -petitioner                    :     Sri B.Mohan Vijayakumar

^ Counsel for the
  Respondent No.1/               :     Sri Maheswara Rao Kunchem
  Judgment-debtor

^ Counsel for the                :   Sri B.Laxman
  Respondent No.2                    Sri Y.Ramatirtha

^ Counsel for the                :   Proforma Party (R.3 is not
  Respondent No.3                    necessary party in this CRP

< Gist:

> Head Note:

? Cases referred:

      1. AIR 1958 Supreme Court 394 (V 45 C 61).
This Court made the following:




                                                                Page 2 of 12
      THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTI

          CIVIL REVISION PETITION NO.3062 of 2015

O R D E R:

This revision-petition is directed against the Order, dated

20.04.2015 in E.P.No.81 of 2014 in O.S.No.46 of 2014 on the file

of Senior Civil Judge's Court, Nandikotkur, whereunder the

Execution Court raised attachment over item No.1 of E.P.,

schedule and directed to hand over the said property to the

Finance Company, which is having Hypothecation Agreement in

its favour for the said property i.e., vehicle bearing No.AP21 TW

6275 (Mahindra Bolero Camper SC XL F vehicle), purchased by

the respondent No.1/judgment-debtor under Hypothecation

Agreement with the respondent No.2/Finance Company.

2. For the sake of convenience, the parties are referred to as

they were arrayed in the execution petition proceedings.

3. The execution petition was filed by the decree-holder under

Order XXI Rule 66 and 77 of the Code of Civil Procedure, 1908

(for brevity 'CPC') for sale of two (02) motor vehicles shown in

E.P., schedule as item No.1 and item No.2, respectively, for

recovery of decree amount due from the judgment-debtor. The

learned Execution Court, after hearing both sides and

considering their respective contentions, passed the impugned

Order, partly allowing the execution petition for sale of item No.2

property only and simultaneously raised the attachment over

item No.1 motor vehicle and released the property to the

respondent No.2 i.e., Finance Company, which is having

hypothecation agreement with the judgment-debtor for the said

vehicle.

4. The learned counsel for the revision-petitioner/decree-

holder would submit that the decree-holder filed the execution

petition against judgment-debtor/respondent No.1 only under

Order XXI Rule 66 and 77 of CPC for the sale of two (02) motor

vehicles i.e., item No.1 and Item No.2 of the E.P., schedule and

the Execution Court during the proceedings of the execution

petition suo motu impleaded the respondent Nos.2 and 3 as

parties to the execution proceedings on the ground that the

'Registration Certificate' (RC) book of the said vehicles are having

an endorsement of the Transport Authority, showing as

hypothecated to respondent No.2 and whereas, RC of item No.2

vehicle contains an endorsement as hypothecated to respondent

No.3. though the said respondents did not file any application

under Order XXI Rule 58 of CPC for raising the attachment

claiming the vehicles, later, passed the impugned Order raising

the attachment against the item No.1 of the E.P., schedule and

released the vehicle in favour of respondent No.2, while allowing

the execution petition against item No.2 of the E.P., schedule for

sale. He would further submit that the impugned Order is illegal

and the Execution Court suo motu cannot implead the

respondent Nos.2 and 3 as parties to the execution proceedings

and raise the attachment releasing the item No.1 vehicle to the

respondent No.2.

5. The learned counsel for the respondent No.2/Finance

Company would submit that the Order of the Trial Court is not

suffered with any illegality or irregularity and the Execution

Court can implead any party to the proceedings for just decision

in a case and the Execution Court can implead the parties using

its inherent powers for just decision of the case. He would further

submit that the revision-petitioner/decree-holder did not

challenge the earlier order of the Execution Court impleading the

respondent Nos.2 and 3 as parties to the execution proceedings

and therefore, now he cannot challenge the same while

questioning the impugned Order, dated 20.04.2015.

6. In the light of above rival contentions, the point that would

arise in the revision-petition is as under: -

"Whether the Execution Court committed any material irregularity in the Order, dated 20.04.2015 passed in E.P.No.81 of 2014 in O.S.No.46 of 2014?"

7. P O I N T: -

It is an admitted fact that the revision-petitioner/decree-

holder obtained a decree against the respondent No.1/judgment-

debtor for recovery of amount and he filed the execution petition

vide E.P.No.81 of 2014 on the file of Senior Civil Judge's Court,

Nandikotkur under Order XXI Rule 66 and 77 of CPC for sale of

two (02) motor vehicles i.e., item Nos.1 and 2 of the E.P.,

schedule for realization of decree amount. It appears that the

learned Execution Court in the earlier, basing on the RC Book

relating to said two (02) motor vehicles found that those vehicles

were hypothecated to respondent Nos.2 and 3 Companies,

respectively by the judgment-debtor and therefore, impleaded

respondent Nos.2 and 3 as parties to the execution proceedings

and ordered notice to them. The revision petitioner did not

challenge the said order.

8. In pursuance of the notice received from the Execution

Court, the respondent No.2 appeared before the Execution Court

and filed counter contending that the judgment-debtor has taken

a loan for a sum of Rs.4,78,000/- for purchasing item No.1 motor

vehicle and executed Hypothecation Agreement on 30.10.2012

and Agreement value is for Rs.6,38,821/- and subsequently, he

paid only Rs.2,41,300/- as on 27.06.2014 and later, committed

default and he did not repay the loan amount and therefore, as

per the terms of the Hypothecation Agreement, the company is

entitled to take possession of the vehicle and sell the same by

following due process of law and therefore, the judgment-debtor

has no right to alienate the said vehicle pending hypothecation

and hence, the said property cannot be sold in the execution

petition.

9. The respondent No.3 did not appear before the Execution

Court and contest the matter.

10. The learned Execution Court considering the rival

contentions, passed the impugned Order, dated 20.04.2015

raising the attachment against item No.1 motor vehicle and

ordered for sale of item No.2 of the motor vehicle of the E.P.,

schedule.

11. It is an admitted fact that during enquiry before the

Execution Court, the respondent No.2 filed certain documents

relating to item No.1 motor vehicle. Ex.B.2 is the Registration

Certificate of the motor vehicle bearing No. AP21 TW 6275, which

contains the endorsement of the Transport Authority that the

vehicle was hypothecated to the respondent No.2/Finance

Company. The respondent No.2 company also filed Ex.B.5

original Loan-cum-Hypothecation Agreement executed by

judgment-debtor for purchasing the said vehicle. It is pertinent to

note here that the respondent No.1 did not contest the claim of

the respondent No.2/Finance Company on the ground that he

discharged the loan amount payable to the respondent No.2/

Finance Company under the Hypothecation Agreement.

12. As per Section 2 (30) of the Motor Vehicles Act, 1988, a

person in whose name a motor vehicle stands registered would be

treated as an owner. Where a motor vehicle is subject to an

agreement of hire-purchase, or an agreement of lease or an

agreement of hypothecation, the person in possession of the

vehicle under the agreement, is treated as owner.

13. Section 51 (1) (3) and (4) of the Motor Vehicles Act, 1988 is

relevant for the present case, which enacts Special provisions

regarding motor vehicle subject to hire-purchase agreement,

which is as follows:

(1) Where an application for registration of a motor vehicle which is held under a hire-purchase, lease or hypothecation agreement (hereafter in this section referred to as the said agreement) is made, the registering authority shall make an entry in the certificate of registration regarding the existence of the said agreement.

(2) ... ... ...

(3) Any entry made under sub-section (1) or sub- section (2), may be cancelled by the 1 [last registering authority] on proof of the termination of the said agreement by the parties concerned on an application being made in such form as the Central Government may prescribe 2 [and an intimation in this behalf shall be sent to the original registering authority if the last registering authority is not the original registering authority].

(4) No entry regarding the transfer of ownership of any motor vehicle which is held under the said agreement shall be made in the certificate of registration except with the written consent of the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement.

14. The evidence considered by the Execution Court makes it

clear that the vehicle remained in the name of judgment-debtor

but an entry as hypothecated to respondent No.2 was there on

the Registration Certificate.

15. Rule 61 of the Central Motor Vehicle Rules, 1989 deals

with 'Termination of hire-purchase agreements.' It enacts as

under:

(1) An application for making an entry of termination of agreement of hire purchase, lease or hypothecation referred to in sub-section (3) of Section 51 shall be made in Form 35 duly signed by the registered owner of the vehicle and the financier, and shall be 14 accompanied by the certificate of registration and the appropriate fee as specified in Rule 81.

(2) The application for the issue of a fresh certificate of registration under sub-section (5) of Section 51 shall be made in Form 36 and shall be accompanied by a fee as specified in rule 81.

(3) Where the registered owner has refused to deliver the certificate of registration to the financier or has absconded then the registering authority shall issue a notice to the registered owner of the vehicle in Form 37."

16. Admittedly, the hypothecation entry in favour of the 2nd

respondent in the Registration Certificate of the vehicle was not

cancelled by the Transport authorities as per the procedure laid

down under law as stated above. In those circumstances, as

rightly held by the learned Execution Court, the said vehicle

cannot be sold in the execution proceedings. Therefore, there is

no irregularity in the finding of the learned Execution Court on

this aspect.

17. Coming to the contention of the learned counsel for

revision-petitioner that the Execution Court has no authority to

implead the respondent Nos.2 and 3 as parties to the execution

proceedings, without any application claiming the property is not