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1991 DIGILAW 316 (ALL)

PRABHA DEVI v. BHOOP SINGH AND OTHERS

1991-02-27

R.R.K.TRIVEDI

body1991
( 1 ) THIS revision under S. 115, C. P. C. has been filed against the order dated 23-1-1991 passed by the learned 8th Additional District Judge, Agra. Facts giving rise to this revision are that an award dated 21-8-1987 was passed by Motor Accidents Claims Tribunal, Agra in favour of bhoop Singh, opposite party No. 1, and against Raghvendra Singh, opposite party No. 2 of this revision. By the aforesaid award Rs. 96,000/- have been awarded as damages in favour of opposite party Bhoop Singh. The Tribunal issued a recovery certificate on 10-2-1989 which was sent to Collector, Agra for realisation of the amount. Collector, Agra in pursuance of the recovery certificate issued by the Motor Accident Claims Tribunal, proceeded with the recovery of the amount and attached House No. 5/6-A, situate in Marhia Katra, Agra. Present revisionist smt. . Pabha Devi filed an application under S. 151, CPC before the Motor Accident Claims tribunal, Agra and claimed therein that she purchased the house from judgment-debtor raghvendra Singh, vide sale deed dated 17-3-1989 for a consideration of Rs. 1,15,000/- It has also been stated that this sale deed has been executed in pursuance of the agreement to sell dated 20-4-1987 which was executed in her favour by mother of the judgment-debtor Raghvendra singh. The applicant prayed that she is a bona fide purchaser of the house in dispute and it could not be attached in recovery proceedings against opposite party No. 2. The learned Tribunal after hearing the parties rejected this application vide order dated 23-1-1991. It is not necessary for decision of the present revision to refer to the findings recorded by the learned Judge; as in my opinion the entire proceedings, against attachment before the Motor Accident Claims Tribunal, were misconceived and not maintainable in law. Under the provisions of Motor Vehicles Act, 1939 claims arising out of motor accidents could be entertained by the Tribunal under S. 110-A of the Act. The procedure has been prescribed for the same in Ss. 110-B, 110-C, 110-CC and 110-CCC under S. 110-D appeals against the award of the Tribunal have been provided which could be preferred before High Court. S. 110-E provides provision for recovery of money which reads as under :-" 110e. The procedure has been prescribed for the same in Ss. 110-B, 110-C, 110-CC and 110-CCC under S. 110-D appeals against the award of the Tribunal have been provided which could be preferred before High Court. S. 110-E provides provision for recovery of money which reads as under :-" 110e. Recovery of money from any person as arrears of land revenue,-Where any money is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the money, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue. " ( 2 ) PERUSAL of the aforesaid S. 110-E makes it clear that the Tribunal could only issue a certificate for the amount to the Collector is to recover the same in the same manner as arrears of land revenue. There is no other provision in the Act under which the Tribunal could entertain an objection or an application under S. 151 against attachment of the property in proceedings taken by the Collector for recovery of the amount on the basis of the certificate. Similarly in U. P. Motor Accident Claims Tribunal Rules, 1967, there is no provision for entertaining an Objection or application by a third party challenging attachment by the Collector. As there is no provision authorising the Tribunal to entertain such an objection or application, the entire exercise before the Claims Tribunal was wholly misconceived. Unfortunately, this point was not raised before the learned Tribunal. ( 3 ) DR. Gyan Prakash, learned counsel for the applicant, however, submitted that as the Tribunal has issued the certificate it has an implied power to withdraw the certificate and if the authority which could be convicted by the applicant that her house has been illegally attached in proceedings under the certificate, the learned Tribunal, could withdraw the certificate and for exercising this power of withdrawing the certificate, the application of the petitioner could be entertained. However, I am unable to accept the submissions made by the petitioner. The Motor accident Claims Tribunal as provided in the Motor Vehicles Act, 1939 is a Tribunal with limited powers. The legislature by its collective wisdom did not think it proper to invest the Tribunal with power to execute the award. However, I am unable to accept the submissions made by the petitioner. The Motor accident Claims Tribunal as provided in the Motor Vehicles Act, 1939 is a Tribunal with limited powers. The legislature by its collective wisdom did not think it proper to invest the Tribunal with power to execute the award. Probably the reason for not giving this power to the Tribunal was to avoid delay in realisation of the amount of damages which is urgently needed by the dependents of the deceased. So far the power to withdraw the certificate is concerned, it can be exercised only in certain circumstances. The withdrawal of the certificate may become necessary where some correction has been done by the Tribunal in its award or the award has been satisfied by payment of money to the claimants. It is only in such circumstances that the Tribunal could withdraw the certificate issued by it under S. 110-E it cannot be said that the Tribunal could exercise authority to adjudicate the title or question of possession and for withdrawing the recovery certificate. The Motor Vehicles Act, 1988 has come in force from 1-7-1988. Even in the new Act position is the same. Section 174 of the Motor Vehicles Act, 1988 contains identical provision. ( 4 ) IN Smt. Sundarwati v. State of U. P. reported in 1984 All WC 932 : (1984 All LJ 1124) a division Bench of this court has held "that a perusal of Ss. 279, 282 and 286 of the U. P. Z. A. and L. R. Act makes it clear that it is only the property of defaulter which can be proceeded against for recovery of an amount as arrears of land revenue. Section 341 of the Act contemplates that unless otherwise expressly provided, the provisions of Civil Procedure Code, 1908 shall apply to the proceedings under the Act. It is obvious that in the absence of any provision in the U. P. Z. A. and L. R. Act or the Rules framed thereunder, it would be the provisions of the Code of Civil Procedure relating to the attachment and sale of immoveable property which will be attracted while proceeding against it for recovery of arrears as the arrears of land revenue. Consequently, it is legitimate to conclude that the provisions of the Code of civil Procedure would be applicable where the interest of a defaulter in the immovable property is proceeded against for recovery of the arrears of land revenue as in the instant case. After the amendment of the Code of Civil Procedure, 1908, by Amendment Act 104 of 1976, Rule 58 of order XXI will take within its sweep an objection filed by the third party to attachment of his interest in the immovable property proceeded against and the question relating to the objection, claim of right and interest in the property must be decided before proceeding further. " ( 5 ) IN view of the legal position stated in the case of Sundarwati, the applicant could file an objection under O. XXI, Rule 58 for determination of her rights before the Collector and the collector could decide her claim in accordance with law. Dr. Gyan Prakash, however, submitted that in the Division Bench case of Smt. Sundarwati reliance was placed in the Case of Seth banarasi Das Gupta v. State of U. P. (1975 Rev Dec 246 : (1974 All LJ 899) (HC) and this case has been overruled in AIR 1984 SC 1213 Ram Narain Agarwal v. State of U. P. and in view of the judgment of the Honble Supreme Court, the view taken by the Division Bench of this Court cannot be said to be a good law. ( 6 ) I have thoroughly considered the contention raised by Dr. Gyan Prakash and in my opinion the case reported in AIR 1984 SC 1213 is clearly distinguishable. In that case the controversy was regarding arrest in proceedings for recovery of the amount as land revenue arrears. It was argued that provisions of Civil Procedure Code contained in S. 51 providing for arrest are applicable and unless the conditions provided therein are satisfied no arrest could be made. Honble the supreme Court rejected this contention as in U. P. Z. A. and L. R. Act and the Rules framed thereunder, the provisions have been made for arrest and detention, hence S. 51 of the Code of civil Procedure could not be relied on. Honble the supreme Court rejected this contention as in U. P. Z. A. and L. R. Act and the Rules framed thereunder, the provisions have been made for arrest and detention, hence S. 51 of the Code of civil Procedure could not be relied on. However, so far as attachment and sale of immovable property is concerned no provision has been provided for in the U. P. Z. A. and L. R. Act to hear the grievance of third party. In these facts and circumstances as there is no provision in the u. P. Z. A. and L. R. Act, the provisions contained in Civil Procedure Code shall become applicable by virtue of Section 341 of U. P. Z. A. and L. R. Act. In my opinion, the view expressed by the Division Bench of this Court still holds good and in these circumstances the applicant may have her remedy before the Collector, Agra by filing an objection under O. 21, R. 58, c. P. C. Dr. Gyan Prakash also placed reliance on the case reported in (1970) 76 ITR 96 (All) for the contention that the Collector cannot examine objection under Order 21 Rule 58 C. P. C. However, this judgment is of a learned single Judge of this court and cannot be said to be a good law in view of the position of law expressed by the Division Bench. ( 7 ) AT the end, the learned counsel for the applicant submitted that in case the applicant is directed to tile an objection under 0. 21 Rule 58, C. P. C. before the Collector or she is directed to file a suit, the property under attachment may be auctioned and in that situation the applicant may suffer irreparable loss and injury. In the case of Smt. Sundar-wati, (1984 All LJ 1124), the division Bench has clearly held that in case" an objection under Order 21 Rule 58, CPC is filed, the property cannot be auctioned before deciding the objection. In these circumstances, there is sufficient safeguard. The applicant is only required to file an objection for redress of her grievance against attachment. ( 8 ) FOR the reasons recorded above, as the proceedings before the learned Claims Tribunal were wholly misconceived and without jurisdiction, this revision has no force and is liable to be rejected. In these circumstances, there is sufficient safeguard. The applicant is only required to file an objection for redress of her grievance against attachment. ( 8 ) FOR the reasons recorded above, as the proceedings before the learned Claims Tribunal were wholly misconceived and without jurisdiction, this revision has no force and is liable to be rejected. The order dated 23-1-1991 passed by the learned 8th Additional District Judge, Agra need not be set aside. However, it is made clear that the findings and observations made therein will not affect the right of the applicant in any other proceedings initiated by her for protection of her rights. The Motor Accident Claims Tribunal, Agra is hereby directed to return the application filed by the applicant for being presented before the Collector, Agra for adjudication of her rights. She will also make an application for not auctioning the property attached before decision of her objection under Order 21 Rule 58 CPC It is expected that the Collector, Agra shall abide by the law laid down by the Division Bench and shall not auction the property before deciding the objection of the applicant. ( 9 ) THE revision has no merit and subject to the observations made above is hereby dismissed. Revision dismissed. .