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2017 DIGILAW 1197 (HP)

Phullu Devi v. Piare Lal Sharma

2017-10-27

CHANDER BHUSAN BAROWALIA, VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. Heard. 2. This petition has been filed under Rule 16(i) of Part-C of the High Court of Himachal Pradesh (Original Side) Rules, 1997, (hereinafter referred to as ‘the High Court Rules’) for execution of judgment dated 07.04.2017, passed by this Court in FAO No. 431/2010, titled as Piare Lal Sharma versus Smt. Phullu Devi and others, arising out of award 26.10.2002, passed by the Motor Accident Claims Tribunal-II, Mandi, (for short ‘the Tribunal’) in Claim Petition No. 64 of 1998, titled as Smt. Phullu Devi and another versus Sh. Piare Lal Sharma and others. 3. Mr. G.R. Palsra, learned Counsel appearing on behalf of the petitioners submits that he had filed an execution petition invoking the provisions of Section 168 of the Motor Vehicles Act, 1988 (for short ‘the MV Act’), which was returned by the Registry of this Court, with the objection that the said Section does not contain the provisions for execution and thus, he is constrained to file this execution petition invoking the provisions of Rule 16(i) of the High Court Rules, as the petitioners have no other option for execution of the judgment passed by this Court in appeal modifying the award passed by the Tribunal and as the aforesaid award was modified by this Court, the execution lies in this Court. 4. Rule 16(i) of Part-C of the High Court Rules reads as under. “Application for Execution of order how made—((i) Any party to a proceeding under Art. 226 of the Constitution of India desiring to obtain execution of any order passed under Art. 226 of the Constitution of India, including any order as to costs, shall apply to the court by a stamped application which shall be supported by an affidavit of the applicant regarding the non-satisfaction of the order and shall also be accompanied by a certified copy of the order.” 5. Rule 16(i) of Part-C of the High Court Rules deals with the execution of orders passed by this Court, exercising its original side jurisdiction under Article 226 of the Constitution of India. Therefore, the plea of the learned Counsel for the petitioners is mis-conceived as execution under this Rule will lie for the orders passed exercising original jurisdiction of this Court under Article 226 of the Constitution. 6. Therefore, the plea of the learned Counsel for the petitioners is mis-conceived as execution under this Rule will lie for the orders passed exercising original jurisdiction of this Court under Article 226 of the Constitution. 6. Another contention of the learned Counsel for the petitioners that execution of an order/judgment/award passed by this Court in appeal modifying the award passed by the Tribunal, will lie in this Court, is also against the law. 7. Part-II of the Code of Civil Procedure, 1908, (for short ‘the CPC’) deals with execution, wherein Section 38 of the CPC reads as under:- “38. Court by which decree may be executed-A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.” 8. Definition of ‘Court which passed a decree’ has been given in Section 37 of the CPC. The relevant provisions of Section 37 of the CPC reads as under:- “37. Definition of Court which passed a decree –The expression “Court which passed a decree”, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include- (a) where a decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and” 9. It is clear from Section 37 of the CPC that decree of the Appellate Court is to be construed as the decree passed by court of the first instance and in the present case, the Court of the first instance is the Tribunal. An appeal is a continuation of the claim petition and a combined reading of Sections 37 and 38 of the CPC indicates that Executing Court shall be the Court of the first instance. As an order/judgment/award passed by the Appellate Court is to be construed to have been passed in the same claim petition, therefore, appropriate form for petitioners to execute an order/judgment/award is the Tribunal. 10. The contention raised by the learned Counsel for the petitioners that the petitioners have no other option or remedy except filing the present petition in this Court, is also contrary to the provisions of law. 11. Section 174 of the MV Act contains the provisions for recovery of money due from any person under an award. Section 174 of the MV Act reads as under:- “174. 11. Section 174 of the MV Act contains the provisions for recovery of money due from any person under an award. Section 174 of the MV Act reads as under:- “174. Recovery of money from insurer as arrears of land revenue- Where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount of the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue.” 12. The aforesaid Section of the MV Act provides that Claims Tribunal may issue a certificate indicating that Tribunal has discretion either to issue a certificate as described in this Section or to adopt any other procedure available to it to execute its award in accordance with Rule. 13. Section 169 of the MV Act describes procedure and powers of the Claims Tribunals subject to any rule that may be made in this behalf. 14. Section 176 of the MV Act empowers the State Government to make rules for the purpose of carrying into effect the provisions of Sections 165 to 174 of the MV Act including rules providing the procedure to be followed by a Claims Tribunal holding an enquiry under Chapter XII of the MV Act and also the powers vested in Civil Court, which may be exercised by the Claims Tribunal. 15. The State of Himachal Pradesh has enacted the Himachal Pradesh Motor Vehicle Rules, 1999 (for short “the MV Rules’). Chapter XI in Rules 215 to 235 deals with the motor accident claims. Rule 232 of the MV Rules has made Order XXI applicable to the proceedings before Claims Tribunal. Rule 232 of the MV Rules reads as under:- “The Code of Civil Procedure to apply in certain cases:- The following provisions of the First Schedule to the Code of Civil Procedure, 1908 shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 & 15 to 30; Order IX; Order XIII; Rule 3 to 10; Order XVI, Rules 2 to 21; Order XVII; Order XXI and Order XXIII, Rules 1 to 3.” 16. Apart from Rule 232, Rule 235 of the MV Rules specifically empowers the Claims Tribunal to exercise the powers of Civil Court to be exercised in the execution of a decree. Rule 235 of the MV Rules reads as under:- “Powers of Claims Tribunal:- In endorsing the orders, the Claims Tribunal shall have all the powers in regard to attempts, resistance and the like which a Civil Court may exercise in the execution of a decree.” 17. It is evident from the provisions of Section 174 of the MV Act and Rules 232 & 235 of the MV Rules that petitioners have two options/remedies for execution of an order/judgment/award either by filing an application under Section 174 of the MV Act or filing execution petition by invoking the provisions of Order XXI of the CPC, as provided under Rules 232 and 235 of the MV Rules, in the Tribunal. 18. In view of the above discussion, plea raised on behalf of the petitioners is mis-conceived. Accordingly, the present petition is dismissed being not maintainable.