When the claim petition filed by the private respondents was decreed ex parte on 9.2.1994, the petitioners got the ex parte decree recalled and thereafter a fresh award dated 27.5.2002 was passed for paying claimants an amount of Rs. 1,92,000/-. Aggrieved thereof, the petitioner filed a First Appeal From Order which was dismissed on 18.10.2012. In the meantime, the decree holders tried to get the amount due under the award recovered. An application numbered as execution case no. 90 of 2002. was initially filed which was dismissed on 7.4.2005. Thereafter, the respondents moved another application for the recovery of the decreed amount and this was numbered as Execution Case no. 400 of 2005. On the moving of the execution application no. 400 of 2005, on 2.3.2007, the Motor Accident Claim Tribunal had initiated recovery proceedings by issuing a recovery certificate to the Collector. However, on 4.1.2008, the Additional District Judge who was the Tribunal, at that point of time, dismissed the said execution application on 4.1.2008 stating that the claimants were not depositing the required fee for initiating the recovery. The private respondents, thereafter, moved a restoration application on 16.1.2008 which was dismissed in default on 14.8.2008. However, on 17.1.2011, the order of dismissal in default of the restoration application and the order of dismissal in default of the application for getting the award money dated 4.1.2008 were recalled and the application under Section 174 was restored to its original number and a date was fixed for hearing on 24.3.2011, on which date the recovery certificate was again issued. Aggrieved thereof, the petitioner has filed the instant application under Article 227 of the Constitution of India for setting aside the order dated 24.3.2011 and for the quashing of the proceedings which were initiated by the Misc. Case no. 400 of 2005.
Learned counsel for the petitioner has made, the following submissions:-
I. When once the application which was numbered as execution case no. 90 of 2002 was dismissed on 7.4.2005 then a notice ought to have been issued as per the Order XXI Rule 22 of the Code of Civil Procedure, 1908, as it would amount to initiating execution after two years of the passing of the award.
II. Further he also submitted that as per the provisions of Section 11 of the Code of Civil Procedure which have been explained by explanation VII of the Section 11, the second Application which was numbered as Execution Case no. 400 of 2005 was barred by principles of res judicata. He also cited 1914 (AIR) Privy Council 129 : Ragunath Das and Others vs. Sundar Das Khetri and another and 1993 (4) SCC 414 : Satyanarain Bajoria and Another vs. Ramnarain Tibrewal and Another to bolster his submissions.
In reply, learned counsel for the claimant-respondents, however, submitted that under Section 174 of the Motor Vehicles Act, it was the bounden duty of the Tribunal to get the amount recovered which was payable under the award and get it paid to the claimant and that when an application was filed under Section 174 of the Code of Civil Procedure for getting the payment as was due under the award then principles of res judicata would not apply. To support his submissions, learned counsel read out paragraph 14 of a judgement reported in 2015 (3) TAC 663 (H.P.): Oriental Insurance Co. Ltd. vs. Shri Kishan Chand and Others and the same is being reproduced here as under:-
"14. Order of dismissal in default is not a decree in terms of the mandate of Section 2(2) (b) of CPC. It is apt to reproduce Section 2(2) of CPC herein:
"2. .................
(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an appeal from an order, or
(b) any order of dismissal for default.
Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
Thus, it can be safely said that doctrine of res judicata is not applicable."
He also read out certain portions of the judgement reported in 2015 (1) TAC 4888 (P & H): Prem Chand vs. Akashdeep and Another which are being reproduced here as under:-
"3. Learned counsel seeks to contend that a procedure prescribed for enforcement of process against land must be understood as a procedure that causes an interdict against attachment through enforcement provided under the Civil Procedure Code. This argument, in my view, is fallacious, for there is no means by which the provisions of Civil Procedure Code could be incorporated in a procedure, which is independently prescribed under the Land Revenue Act. They operate in two distinct fields and certain special privileges which Civil Procedure Code provides for enforcement of decrees cannot be applied to enforcement of awards. The Motor Vehicles Act itself is a complete Code and the extent to which Civil Procedure Code provisions are applicable are brought through the Motor Vehicles Act itself. Such procedure and powers are set out under Section 169 of the Motor Vehicles Act. The references to Civil and Criminal Procedures are available only in so far as taking of evidence on oath, enforcement of attendance of witnesses and compelling the party for production of documents. Power under Section 174 is independent of any power to recover under the Civil Procedure Code itself by attachment of the property of the judgment debtor. If the decree-holder seeks to resort to attachment of the property enforcing the award as a decree of Civil Court, he shall be perfectly at liberty to do so but if the recovery of money is sought from any person under an award after securing a certificate for amount from the Collector then the procedure that the Collector will follow shall only be what is provided under the Land Revenue Act itself.
4. All this becomes only academic, for in respect of recovery of amount under the very same award, it appears that the same objection appears to have been taken before the Executing Court and the Court has rejected such a contention at an earlier point of time in execution petition No.13 dated 19.07.2004 decided on 03.10.2006. Explanation VII to Section 11 CPC enacts a rule of public policy that the principle of res judicata shall apply to proceeding for execution of decree and references made under Section 11 to any suit or former suit would apply such references to a proceeding for execution of a decree and the question arising in such proceeding and former proceeding for execution of that decree. Though I have stated that the provisions under Section 60 (ccc) is not applicable since there are express provisions under the Motor Vehicles Act itself, I still referred to Section 11 CPC, for the principle of res judicata as brought under Section 11 is to be applied even in cases where CPC is not applicable on grounds of public policy. I would, therefore, hold that an earlier adjudication made by the Executing Court on the same matter that became final will conclude the issue for judgment debtor and bar him from taking up the very same defence in a subsequent stage at execution for realization of further sums in the very same decree. The issue of whether the exceptions provided under the CPC for properties that cannot be attached could be invoked in proceedings for recoveries under the Land Revenue Act has come for consideration before the Supreme Court itself in State of Punjab Vs. Dina Nath 1986 RRR 490. The point which was directly in issue was whether an attachment and sale of property for recovery of revenue due to State was barred in respect of building used for residential purpose and whether the provisions of Section 60 (ccc) would be applicable was taken up and the Court held that exemption was only for properties specified under the Act. The Court held that Punjab Land Revenue Act was a complete Code providing for modes and machinery for recovery of arrears of revenue and the provisions of Civil Procedure Code are not applicable to attachment and sale in revenue recovery proceedings. The award which is passed by Tribunal, which obtains a status through a certificate issued by the Collector as land revenue payable ought to therefore obtain a different treatment and the trappings of the Civil Procedure Code and limitations contained therein cannot, therefore, be attracted. This point was also subsequently decided under the Motor Vehicles Act itself by a Division Bench of the Kerala High Court in V. Varghese Vs. Sunny M.P. And another 2009 AIR (Kerala) 133 where the Court held that execution of award by Tribunal after issuance of a certificate to the land recovery authority cannot avail to a judgment debtor to plead for the benefit of Section 60 (1)(c) of the Civil Procedure Code. The said provision contained a similar provision relating to certain exemptions.
5. The order passed by the Executing Court is under the circumstances perfectly justified and challenge to the same in revision cannot survive for favourable consideration. The civil revision is consequently dismissed. "
An application under Section 174 is different from an execution application which is filed under the Code of Civil Procedure. In fact, it was also submitted that there was no limitation for filing an application for getting the payment done under an award under Section 174 and for this purpose he cited 2015 (3) TAC 815 : Rajesh Kumar Mamgain vs. Raj Singh and Another and specifically read out paragraph 3 of the judgement which is being reproduced here as under:-
"3. Learned counsel for the petitioner has contended that the approach of learned Tribunal is erroneous since there is no limitation prescribed under Section 174 of the Act. If a petition can be entertained without any limitation, likewise the application for execution can also be maintained since it is a special act. In support of his contention, learned counsel for the petitioner has placed reliance upon a judgment of the Apex Court passed in Motor Accident Claim Case in the case of New India Assurance Co.LTd. v. C. Padma and another, A.I.R. 2003 S.C. 4394 : 2004 (1) TAC 10, wherein at para-12 it has been held as under:-
12. Learned Counsel for the appellant, next contended that since no period of limitation has been prescribed by the Legislature, Article 137 of the Limitation Act, may be invoked, otherwise, according to him, stale claims would be encouraged leading to multiplicity of litigation for non-prescribing the period of limitation. We are unable to countenance with the contention of the appellate for more than one reason. Firstly, such an Act like Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, if otherwise the claim is found genuine. Secondly, it is a self contained Act which prescribes mode of filing the application, procedure to be followed and award to be made. The parliament, in its wisdom, realised the grave injustice and injury being caused to the heirs and legal representatives of the victims who suffer bodily injuries/die in accidents, by rejecting their claim petitions at the threshold on the ground of limitation, and purposely deleted sub-section (3) of Section 166, which provided the period of limitation for filing the claim petitions and this being the intendment of the Legislature to give effective relief to the victims and the families of the motor accidents untrammelled by the technicalities of the limitation, invoking of Article 137 of the Limitation Act would defeat the intendment of the Legislature."
Having heard the learned counsel for the parties I am of the view that it is the bounden duty of a Tribunal to get money due under an award paid. Section 174 of the Motor Vehicle Acts 1988 is reads as under:-
"174. Recovery of money from insurer as arrear 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 to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue."
A bare perusal of the above section makes it clear that after the certificate of recovery has been issued by the Tribunal to the Collector then thereafter the Collector had to proceed with the recovery as if he was recovering arrears of land Revenue. Thereafter, the Tribunal washes its hand off the case and transfers the matters to the Court established under Chapter XI of the U.P. Revenue Code 2006, which has now to collect the amount payable from the judgement debtor and hand it over to the decree holder. Thus, the petitioner cannot say that the application under Section 174 which was filed by the decree holder was barred by the principles of res judicata.
In the instant case, the award was passed on 27.5.2002 and has now been confirmed by the High Court on 18.10.2012. Now it is the bounden duty of the Tribunal to get the amount as is due under the award paid to the decree holder. The application as was filed by the decree holder which was numbered as 400 of 2005 and in which the Tribunal had issued the recovery certificate on 24.3.2011 shall now be revived and the Collector shall recover the amount payable under the award dated 27.5.2002 forthwith.
The writ petition is, accordingly, dismissed.
Order Date :- 26.4.2018 praveen.