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2005 DIGILAW 678 (PNJ)

Surender Singh v. Omvati

2005-05-31

M.M.KUMAR

body2005
JUDGMENT M.M. Kumar, J. - This petition filed under Article 227 of the Constitution is directed against order dated 9.8.2004 passed by the executing Court, namely, Motor Accident Claims Tribunal, Rewari (for brevity, the Tribunal) dismissing the objections raised by the judgment-debtor petitioners (for brevity, JD-petitioners) to the execution of award dated 7.6.1995. It is appropriate to mention that one Hanuman had died in a motor vehicle accident on 13.11.1991. His legal heirs and dependents filed a claim petition on 29.1.1992. The predecessor-in-interest of the JD-petitioners, namely, Bhagirath suffered a decree in favour of the JD-petitioners on 4.1.1992. The proceedings in the claim petition filed on 29.1.1992 culminated into award dated 7.6.1995 for an amount of Rs. 3,07,200/-. The Tribunal also awarded 12% interest from the date of petition till realisation. The execution proceedings were initiated on 16.1.2000 to which the present petitioners filed objections under Order 21 Rule 58 of the Code of Civil Procedure, 1908. The objections have been partially accepted and the operative part of the order passed by the Tribunal reads as under :- "14. After considering the submissions of both the sides, I am of the considered view that decree dated 4.1.1992 had been suffered by Bhagirath in favour of his sons, with their collusion just to avid the payment of compensation amount, which could be passed against him in the possible claim petition. Said Bhagirath got filed civil suit against him from his sons some time after the accident, then hurriedly admitted their plaint and suffered the decree. I am of the considered view that said decree dated 4.1.1992 is absolutely not binding on the decree holders. 15. Though, it has been found as per above discussion that decree dated 4.1.1992 is not binding upon the decree holders, but the question is that whether whole of the agriculture land of the share of Bhagirath can be attached, once it has been found that land in his hand was ancestral in nature. Answer to this question, in my opinion, is in the negative. Undisputedly Bhagirath has four sons i.e. JDs No. 1 to 4. Said four sons formed a coparcenary with Shri Bhagirath and so they had right in the ancestral land by birth. Answer to this question, in my opinion, is in the negative. Undisputedly Bhagirath has four sons i.e. JDs No. 1 to 4. Said four sons formed a coparcenary with Shri Bhagirath and so they had right in the ancestral land by birth. As in the total land detailed in para No. 5 of the execution petition, Shri Bhagirath had 1/5 share, it means that said 1/5 share was owned by Bhagirath as karta of his own coparcenary consisting of himself and his four sons. It is only the share of Bhagirath in the said ancestral coparacenary land, which can be attached and which is responsible for satisfying the claim petition. As per Section 6 of the Hindu Succession Act, even the widow of Bhagirath has a share in the coparency property. Meaning thereby in 1/5 share of the total land, there were in all six co-sharers, who were Bhagirath, his wife and his four sons. If a notional partition had taken place during the life time of Bhagirath, he would have received 1/5 x 1/6 i.e. 1/30 share in the total land. The remaining 5/6 x 1/5 share would have been received by his four sons and wife in equal share. In these circumstances, it is only 1/30 share in the total land, which Bhagirath would have received in the partition of the ancestral land, which can be attached for the purpose of satisfying the award passed in the claim. 16. As a result of my above discussion it is held that land in question was ancestral in nature. JDs had 5/6 x 1/5 share in the total land whereas Bhagirath had only 1/30 share in the ancestral land and, therefore, it is only 1/30 share of Bhagirath in the total land mentioned in para No. 5 of the execution, which is liable to be attached. Both the issues are decided accordingly." 2. When the petition came up for consideration on 26.5.2005, an adjournment was sought to seek instructions as to whether the JD-petitioners were prepared to deposit the whole awarded amount alongwith interest. However, it has been stated by the learned counsel that the JD-petitioners are not in a position to deposit the awarded amount alongwith interest with the executing Court. Therefore, learned counsel has made submissions on merits of the controversy. 3. Two submissions have been made against the impugned order dated 9.8.2004. However, it has been stated by the learned counsel that the JD-petitioners are not in a position to deposit the awarded amount alongwith interest with the executing Court. Therefore, learned counsel has made submissions on merits of the controversy. 3. Two submissions have been made against the impugned order dated 9.8.2004. Firstly, it has been submitted that decree dated 4.1.1992 suffered in favour of the JD-petitioners by their father Bhagirath has not been challenged any where by the claimant-respondents. According to the learned counsel, such a decree requires to be challenged by filing a separate suit. He has further submitted that 1/30 share which has been allocated to Bhagirath should be further partitioned as per the provisions of Section 8 of the Hindu Succession Act, 1956. 4. After hearing the learned counsel, I am of the considered view that there is no merit in this petition. The executing Court has recorded a categorical finding that decree dated 4.1.1992 is liable to be ignored because Bhagirath had suffered the decree in favour of his sons with ulterior motive to avoid the payment of compensation. At that time, it was known to Bhagirath that Hanuman had died and the claim is likely to be made. It is not unknown that after the accident, negotiation takes place and intention of the other party becomes known. Therefore, there is no room to doubt the aforesaid finding. Moreover, the award is dated 7.6.1995 and the JD-petitioners have not paid even a penny to the claimant-respondents till date. The widow and the dependent children who have lost their bread earner are without any financial assistance which is furnished by the award. Therefore, I do not find any room for interference especially under Article 227 of the Constitution. It is well settled that this Court could interfere in case manifest injustice is caused to the party making the grievance before this Court. 5. The argument of the learned counsel that the claimant-respondents should route their claim only by filing a civil suit challenging decree dated 4.1.1992 is liable to be rejected because once the findings have been recorded that the decree has been suffered after the accident, then such an argument is liable to be ignored. 5. The argument of the learned counsel that the claimant-respondents should route their claim only by filing a civil suit challenging decree dated 4.1.1992 is liable to be rejected because once the findings have been recorded that the decree has been suffered after the accident, then such an argument is liable to be ignored. The claimant-respondents cannot be forced to go through another bout of litigation who have already suffered on account of death of their bread earner and the award is yet to be executed which was passed on 7.6.1995. The bona fide of the JD-petitioners has also been found to be doubtful because despite the time given for depositing the awarded amount, statement has been made that the JD-petitioners are not in a position to pay the aforesaid amount. In view of the observations made on the first submission, the question of considering the second submission would not arise. For the reasons stated above, this petition fails and the same is dismissed with costs. Petition dismissed.