Calcutta High Court (Appellete Side)
Smt. Mira Roy Chowdhury & Ors vs Arup Saha & Ors on 1 April, 2011
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
C. O. No. 433 of 2007
Smt. Mira Roy Chowdhury & Ors.
Vs
Arup Saha & Ors.
For the Petitioner : Biswajit Dutta,
Basudev Gayen.
For the Opposite Party No. 1 : Dipak Kumar Mukherjee,
Rajib Mukherjee,
Jayanta Kumar Sanyal.
Heard on : 07.01.2011, 19.01.2011 and
21.01.2011
Judgement on : 01.04.2011
SYAMAL KANTI CHAKRABARTI, J.:
In the instant revisional application Order no. 147 dated 06.01.2007 passed by the learned Civil Judge (Senior Division), 2nd Court, Hooghly in Misc. Case No. 16 of 2005 arising out of Transfer Execution Case No. 01 of 1997 has been assailed. By such order learned court below has disposed of an application 2 dated 26.09.2005 filed by the judgment debtor questioning jurisdiction of the court to execute a transferred award passed by the learned Motor Accident Claims Tribunal, 10th Bench, City Civil Court, Calcutta in M.J.C. Case No. 162/87 followed by M.J.C. Execution Case No. 06 of 1995.
2. The brief fact of this case is that one Dwijendra Nath Chowdhury instituted an accident claim case being M.J.C. No. 162 of 1987 before the 10th Bench of City Civil Court, Calcutta against Durga Sankar Saha and Uma Shankar Saha being owners of the offending vehicle and Oriental Insurance Company Limited. The said case was decided with an award of Rs. 70,000/- with cost of Rs. 101/- on 28.07.1994 with interest at the rate of 15%. The insurer paid Rs. 15,000/- with interest in compliance with the order through Small Causes Court, Calcutta on 29.06.1998. Then the decree holder filed Execution Case being M.J.C. Execution Case No. 06 of 1995 on 04.07.1995 and after his death on 23.01.1996 the present petitioners have been substituted on 24.06.1996. As the properties of judgement debtors i.e., owners of the offending vehicle situates within the jurisdiction of Serampore Police Station of Hooghly District, said Execution Case was transferred by order dated 10.10.1996 to the learned District Judge, Hooghly who by order dated 22.01.1997 has transferred the case to the learned Civil Judge (Senior Division) 2nd Court, Hooghly which is renumbered as Transfer Execution Case No. 1 of 1997. 3
3. Meanwhile the decree holders in Transfer Execution Case No. 1 of 1997 filed an application dated 10.01.2005 under Order 21 Rule 66 read with Section 62 and 151 of the Civil Procedure Code for fixing a date for settling Public Auction Sale Proclamation of the attached immovable properties of the judgement debtors filed in the case being Misc. Case No. 16 of 2005 on 28.06.2005 in Transfer Execution Case No. 1 of 1997 praying for dismissal of the said execution case and for release of the properties and Route Permit of Vehicle No. W.G.A. 6070 attached by order No. 68 dated 19.10.2001. During pendency of said Misc. Case No. 16 of 2005, the judgement debtors have filed another application on 26.09.2005 challenging jurisdiction of the learned Civil Judge (Senior Division), 2nd Court, Hooghly at Chinsurah to entertain the Transfer Execution Case No. 1 of 1997. By order no. 147 dated 06.01.2007 the learned Civil Judge (Senior Division) held that the said Court is a Civil Court and not a Motor Accident Claims Tribunal and as such he has no jurisdiction to execute the award granted by such Tribunal.
4. It was contended before the learned court below that there is a Motor Accident Claims Tribunal at Chinsura, in the District of Hooghly. Therefore, the Civil Court has got no jurisdiction to execute the award on transfer of the decree in Execution Case No. 6/1995. The learned court below is of the view that if in the special Act there is provision for execution of the decree, the general provision as contained in the Civil Procedure 4 Code will not be applicable. In the instant case there is a specific provision like Sections 110E and 110F of the Motors Vehicles Act, 1939 to be read with Sections 174 and 175 of the said Act. Therefore, he has allowed the prayer giving liberty to the decree-holder/opposite party to move this matter before the appropriate forum for execution of the award.
5. Being aggrieved by and dissatisfied with such order the instant application has been preferred by the decree holder/claimants. The learned lawyer for the petitioners herein submits that the learned District Judge has transferred the decree for execution without considering true interpretation of Section 100F of the Motor Vehicles Act particularly the meaning of 'jurisdiction to entertain' which means "to receive and deliberate". It is further contended that in terms of Section 100F of the Motor Vehicles Act Civil Court jurisdiction has not been ousted rather the Claims Tribunal has been constituted for the purpose of discharging the same functions and duties in the same manner as a Civil Court is expected to do. Learned Court below has also failed to consider that execution case is maintainable and the award can be executed like a decree under Order 21 of the Civil Procedure Code and the decree-holder /award-holder has a right to seek certificate under Section 110E corresponding to amended Section 174 of the Motor Vehicles Act, 1988 and he has the option to file the application to the Civil Court.
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6. From the rival contentions of the parties it appears that the only point for my consideration is to see how a transferred award given by the MAC Tribunal will be executed by the transferee Court in absence of any specific provision in the Motor Vehicles Act. Learned lawyer for the petitioners has claimed that it will be governed under the relevant provisions of the Code of Civil Procedure, 1908 while learned lawyers for the judgement debtor/ opposite parties has claimed that the same will be governed under the Motor Vehicles Act, 1988 and Rules framed thereunder. Therefore, for the sake of convenience the relevant provisions of the Code of Civil Procedure are quoted below:
"Section 30. Decree for payment of money.--Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both."
"Order XXI, Rule 6. Procedure where Court desires that its own decree shall be executed by another Court.--The Court sending a decree for execution shall send--
(a) a copy of the decree;6
(b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and
(c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate in that effect."
"Order XXI, Rule 8. Execution of decree or order by Court to which it is sent.--Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction."
On the contrary the Motor Vehicles Act, 1988 and the Rules framed thereunder also lay down the following procedure for enforcing the orders passed by the Claims Tribunal.
"Motor Vehicles Act, 1988.
Section 110E. 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 7 Collector shall proceed to recover the same in the same manner as an arrear of land revenue.
Section 110F. Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claims for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court.
Section 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."
"West Bengal Motor Vehicles Rules, 1989.
Rule 342. Power vested in Civil Corut which may be exercised by Claims Tribunal. - (1) Without prejudice to the provisions of sub-section (1) of section 169 of the Act every Claims Tribunal may exercise all or any of the powers vested in a Civil Court under the following provisions of the Code of Civil Procedure, 1908 (5 of 1908) as subsequently amended, in so far as they may be 8 applicable, namely, sections 30, 32, 34, 35, 35A, 75(a) and
(e), 76, 77, 94, 95, 132, 133, 144, 145, 147, 148, 149, 151, 152, 153A and 153B and subject to the provisions of the section 174 of the Act.
(2) Any Claims Tribunal constituted for Calcutta where the amount of compensation awarded by it does not exceed Rs.
25,000/- shall have all the powers of the City Civil Court, and where such amount exceeds Rs. 25,000/- shall have all the power of the High Court, for the purpose of execution of the award, as if the award is a decree for the payment of money made in suit by the City Civil Court or the High Court, as the case may be.
(3) Any Claims Tribunal constituted for West Bengal (outside Calcutta) shall have all the powers of the principal Civil Court of a district for the purpose of execution of any award for compensation made by it, as if the award is a decree for the payment of money made in a suit by such court.
(4) For purpose other than those specified in sub-rule (1), the Claims Tribunal may exercise all or any of the powers of Civil Court as may be necessary in any case for discharging its functions under the Act and these rules."
7. From the aforesaid provisions of the Civil Procedure Code as well as Motor Vehicles Act and Rules framed thereunder it will appear that different modes of execution of a decree have been prescribed therein. Rule 342 of 9 the West Bengal Motor Vehicles Rules, 1989 deals with some specified powers vested in Civil Court which may be exercised by Claims Tribunal. It has been held therein that a Tribunal may exercise the powers of a civil court as subsequently amended in so far as they may be applicable, namely, Section 30 (Power to order discovery and the like); Section 32 (Penalty for default);
Section 35A (Compensatory costs in respect of false or vexatious claims or defences) ;
Section 75(a) (Power of Court to issue commission to examine any person and Section 75 (e) Power of Court to issue commissions to hold a scientific, technical or expert investigation);
Section 76 (Commission to another Court);
Section 77 (letter of request);
Section 90 (supplementary proceedings);
Section 95 (Compensation for obtaining arrest, attachment or injunction on insufficient grounds);
Section 132 (Exemption of certain women from personal appearance);
Section 133 (Exemption of other persons);
Section 134 (Application for restitution);
Section 145 (Enforcement of liability of surety); 10
Section 147 (Consent or agreement by persons under disability);
Section 148 (Enlargement of time);
Section 149 (Power to make up deficiency of Court-fees); Section 152(Amendment of judgments, decrees or orders); Section 153A(Power to amend decree or order where appeal is summarily dismissed);
Section 153B (Place of trial to be deemed to be open Court).
8. This is, however, subject to the provisions of Section 174 of the Act which is quoted above. If Section 174 of the Motor Vehicles Act,1988 is read with Rule 342 of the West Bengal Motor Vehicles Rules, 1989 it will lead to an inevitable conclusion that the legislature has conferred limited power of a Civil Court to a Claim Tribunal for the purposes of adjudication of compensation but has prescribed a particular mode of recovery of money from any person under an award. Such recovery is to be made from the insurer by the Collector and not the Civil Court as laid down in Section 174 of the Act as arrear of land revenue. But the provision is silent on how the same will be recovered from owner of the offending vehicle or from any other person or authority. But it will be crystal clear from a reading of Section 30 CPC and Section 174 of the Motor Vehicles Act that recovery of money in connection with a decree of a civil Court can be enforced by detention of the judgement debtor in civil prison or by attachment and sale 11 of his property or by both, while an award of a claims Tribunal can only be enforced by the Collector as an arrear of land revenue.
9. From the impugned order no. 147 dated 06.01.2007 of the learned Civil Judge, Senior Division passed in Misc. Case No. 16 of 2005 I find that the learned Transferee Court has allowed the petition questioning the maintainability of the execution case on contest giving liberty to the decree holder to move the matter before the proper forum for the execution. The main contention is that being a Civil Court he has no jurisdiction to entertain such prayer since there is Motor Accidents Claims Tribunal, Hooghly at Chinsura. It has already been noticed that the compensation awarded against the insurer has already been paid but the amount payable by the owners of the vehicle is yet to be recovered. As the properties of the judgement-debtor owner of the offending vehicle situates within the jurisdiction of Hooghly district the execution case was transferred by the Claims Tribunal by order dated 10.10.1996 to the learned District Judge, Hooghly. In exercise of the power conferred under Order 21 Rule 8 of the Civil Procedure Code the learned District Judge instead of executing the same by himself has transferred the said case for disposal by a subordinate Court of competent jurisdiction. This transfer, in my opinion, is the exercise of a statutory power vested in the learned District Judge to authorise any Court subordinate to it, to discharge function of a Civil Court on his behalf for the purposes of execution of a decree. Now it is the 12 duty of the Transferee Court to consider in what manner, i.e., whether under Section 30 CPC or under Section 174 of the Motor vehicles Act the execution case in question can be proceeded in accordance with law. Instead of considering that aspect the learned Transferee Court has refused to exercise his jurisdiction in realising recovery of the balance amount of the awards from the judgement-debtor owner of the offending vehicle whose properties situate within the jurisdiction of the district.
10. In the case of State of Gujrat -Vs.- Shantilal Mangaldas, reported in (1969)1 SCC 509 it is held inter alia, that when power is given under a statute to do a certain thing in a certain way the thing must be done in that way or not at all. In the case of Narbada prasad -Vs.- Chhanganlal, reported in AIR 1969 SC 395 also same principles have laid down. It is held therein that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes or compliance are excluded. In the instant case the Legislature has prescribed in unambiguous terms the manner of execution of an order of the Motor Accident Claims Tribunal as provided in Section 174 of the Motor Vehicles Act. Rules of interpretation demands that construction of Section 174 of the Act provided in the special beneficial legislation should be followed to the exclusion of general provisions of Civil Procedure Code relating to execution of a decree as contemplated in Section 30. Therefore, I find that in transferring the said award to the learned District Court at Chinsurah, the learned Tribunal has 13 only intended to execute the award by way of recovery through the Collector of another District as arrears of land revenue in terms of section 174 of the Motor Vehicles Act and not by civil detention of the judgement debtors.
11. Therefore, I conceive that the recovery of balance amount of the award shall have to be made in the specific manner laid down in Sections 110E or Section 174 of the Motor Vehicles Act, 1988 as the case may be on the basis of a certificate issued by the Claims Tribunal and for this purpose the Civil Court will follow the specific mode of recovery of the money as laid down in Section 174 of the Motor Vehicles Act, 1988. On receipt of the case the learned Transferee Court should have referred the matter to the Collector of the district so that the latter could proceed to recover the unpaid amount in the specified manner as the arrear of land revenue on the basis of a certificate issued by the Tribunal. But the judgement- debtor has challenged the jurisdiction of the learned Transferee Court which has been decided in his favour making the entire process of execution a stand-still having no mode of recovery of the balance amount of the award. This can neither be the object of any law nor the function of a Civil Court to withdraw its jurisdiction making the award which is equivalent to a decree of a Tribunal inexecutable for 14 ever. The object of law as well as legislature as envisaged under Section 174 of the Motor Vehicles Act, 1988 will be frustrated if such a view is sustained. I find that the findings of the second Transferee Court is not sustainable in law in view of the simple fact that for recovery of arrear amounts of the award he has to take recourse to Sections 110E and 174 of the Motor Vehicles Act, 1988 on behalf of the Tribunal which has no jurisdiction to realise the money through the Collector of the district in which the property of the judgement- debtor situates. I further hold that Order 21 Rule 8 of the Civil Procedure Code empowers the learned subordinate Court to realise the undue sum of the award in question. Section 110F of the Motor Vehicles Act has ousted jurisdiction of Civil where any Claims Tribunal has been constituted for any area to entertain any question relating to adjudication of any claim for compensation including prayer for injunction but it has not ousted jurisdiction of a Civil Court to execute a transferred award for recovery of money in absence of any mode of execution of a decree by a Claims Tribunal outside its jurisdiction in the Motor Vehicles Act.
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12. Learned lawyer for the opposite party no. 1 has contended that the award or decree of the Tribunal cannot be transferred by a Transferee Court under Order 21 Rule 5 of the Code of Civil Procedure to be read with Section 175 of the Motor Vehicles Act, 1988. Admittedly there is ouster of Civil Court's jurisdiction in entertaining motor accident claim cases under section 175 of the Act. In the case of Hira Bhai Nanu Bhai Desai -Vs.- State of Gujrat, reported in AIR 1991 (Guj) 1, it has been held inter alia, that the Motor Accidents Claims Tribunal constituted under the provisions of the Act of 1988 is a "Court" for all intents and purposes including enforcement of its award and, therefore, can exercise powers under Section 47 and Order 21 of the Civil Procedure Code, 1908. It cannot be said that since the jurisdiction of the Civil Court is barred by Section 175 of the Act, the Tribunal would not be justified in assuming and exercising powers of the Civil Court by resorting to and applying provisions under the Code of Civil Procedure. The power of jurisdiction of the Civil Court is one thing and the application of the Code of Civil Procedure is entirely a different thing. The fact of the above case relates to execution of an award within jurisdiction of a Claims Tribunal and not beyond it. Therefore, I hold that above contention of the learned lawyer for the opposite party no. 2 is not 16 sustainable. In fact, Rule 5 and Rule 8 of Order 21 of the Code of Civil Procedure are to be read together with Section 39 of the Code of Civil Procedure.
13. Under Section 39(1)(b) of the Code of Civil Procedure, the Court which passed a decree may on the application of the decree holder can send it for execution to another Court of competent jurisdiction if such person has no property within the local limits of the jurisdiction of the Court which passed the decree is sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court.
14. The power conferred upon the District Judge for transfer of such a case to a subordinate Court under Rule 8 of Order 21 is not complementary to the provisions of Rule 5 of Order 21 and the operation of Rule 5 cannot stand in the way of operation of Rule 8 of Order 21 CPC and they are mutually exclusive. From a combined reading of all these provisions it appears to me that there is no legal bar to the transfer of the award by the Claims Tribunal, Calcutta to the learned District Judge, Hooghly at Chinsurah for realisation of balance amount of the award against owners of the vehicle. If that be the legal position it is the duty of the learned Transferee Court to 17 take steps for recovery of the balance amount by way of execution of a decree in a particular manner, if prescribed by the legislature under special statute, i.e., Motor Vehicles Act.
15. In the instant case the award was given on 28.07.1994 and the mode of recovery of the money will be governed under the new Motor Vehicles Act, 1988. The execution case was initially filed on 10.01.1996. The West Bengal Motor Vehicles Rules, 1989 has specifically prescribed the mode of recovery of the amount from the insurer under sub-Rules 2, 3, and 4 of Rule 342 which are quoted in paragraph 6 above. But what should be the mode of recovery of the balance amount of the award from the owners of the offending vehicle?
16. From a plain reading of Section 174 of the Motor Vehicles Act it is clear that the legislature has specifically laid down the mode of recovery of money from the insurer through the Collector of the district. The Act is silent regarding mode of execution of an award outside the jurisdiction of the Claims Tribunal. But sub-Rule (2) of Rule 342 of the West Bengal Motor Vehicles Rules, 1989 has conferred the status of a City Civil Court or the High Court for the purpose of payment of compensation/ award upto Rs. 25,000/- and 18 above as the case may be. Sub-Rule (4) of Rule 342 has further vested powers of Civil Court upon such tribunal for purposes other than those specified in sub-Rule (1).
17. Now sub-Rule (1) of Rule 342 relates to procedural aspects of a claim case for determination of compensation payable and not the mode of execution of the award. The mode is to be sought for by means of external aid from the Civil Procedure Code. Because if legislature is silent on the point in special law, the general procedural law should be relied upon till suitable provision is provided in such special law.
18. Learned Tribunal in instant case has, ipso facto exercised powers of a Civil Court conferred on it by sub-Rule 4 of Rule 342 of the Rules of 1989 in executing the award as a decree outside its jurisdiction. Had it been transferred to the Claims Tribunal at Chinsurah which is set up for determination of compensation and enforcement of its own order, such Taibunal would have been treated having no jurisdiction to execute a transferred award equivalent to a decree for which Claims Tribunal in Calcutta could not execute its own decree. Legislature in the instant case has clearly indicated in Rule 342(4) relevant provisions of Civil Procedure Code to be applicable for the Motor Vehicles Act for further external aid in executing a transferred 19 award/ decree from the Code itself and not from elsewhere. Needless to repeat that sub-Rule (4) of Rule 342 empowers a Claims Tribunal to exercise the powers of a Civil Court for purposes other than those specified in sub-Rule 1 as may be necessary in any case for discharging its functions under the Act and the Rules framed thereunder. So I hold that for recovery of balance amount of the award, the Tribunal which passed the award is empowered to transfer the same to the District Judge in whose jurisdiction property of the owners of the offending vehicle situates. But the mode of recovery shall be same as applicable to the insurer as laid down in Section 174 of the Motor Vehicles Act. I hold that though Section 174 speaks of Insurer only, the scope and application thereof has been further extended by amending provisions of Section 110E of the Act which now relates to 'any person' from whom money is due. The lacunae in Section 174 of the Motor Vehicles Act has now been filled up by the legislature by incorporating Section 110E which now relates to recovery of money due from any person under an award by the Collector.
19. From the facts of the present case it will appear that the learned Tribunal directed the insurer to pay a sum of Rs. 15,000/- and the 20 vehicle owners Durga Shankar Saha, since deceased and Shri Uma Shankar Saha, the judgement-debtors to pay Rs. 55,000/- with cost of Rs. 101/- within two months, in default to carry at the rate of 15 per cent interest from the date of judgement or award. Since in terms of sub-Rule 2 of Rule 342 if such amount exceeds Rs. 25,000/- the learned Claims Tribunal shall have the power of the High Court for the purpose of execution of the award as if the award is a decree for the payment of money made in a suit by the City Civil Court or the High Court, as the case may be. The Tribunal in exercise of such power has rightly transferred the award to another district for its execution, through District Judge. It is the duty of the learned District Judge or the learned Second Transferee Court to take necessary follow up action in accordance with the prescribed mode of recovery of the balance amount of the amount as contained in Section 110E of the Act.
20. In this connection the ratio in AIR 1970 Andhra Pradesh 307 [C. H. S. S. P. Sarma -Vs.- Om Prakash Agarwal] may be referred to in support of the above contention, in which the true import of Section 39 and Order 21 Rule 5 of the Code of Civil Procedure has been clearly set at rest in the following manner:
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"It is the delegation of the power to execute the decree that confers jurisdiction on the Court and not the mere act of transmission which alone the District Court is empowered to make when the Court that is to execute the decree is specified by the transferor Court. The language of Section 39 does not impose any limitation on the power of the transferor Court to send the decree for execution to another Court specified by it. The provisions of Rule 5 of Order 21, cannot be read so as to curtail the power of the transferor Court, expressed in wide or unambiguous terms of sending the decree for execution to "another Court". The use of the imperative "shall" therein can only be regarded as directory and not mandatory. AIR 1940 Lah 394 Diss. From: AIR 1940 Mad 214 & AIR 1933 Mad 627 Rel. on; AIR 1928 Mad 746 Disting. "
Having regard to the multidimensional aspects of the matter and relying upon the above principle I hold that the impugned order passed by the learned Civil Judge, Senior Division is not sustainable in law. Therefore, I find sufficient merit in this revisional application which is allowed and the order of the learned Civil Judge, Senior Division is set aside. The learned Second Transferee Court is directed to take further steps in terms of Section 174 and Section 110E of the Motor Vehicles Act and the West Bengal Motor Vehicles Rules, 1989 read with Section 30 and Order 21 Rule 8 22 CPC for realisation of balance amount of the award through Collector, Hooghly as arrear of land revenue as expeditiously as possible, preferably within a period of three months from the date of communication of this order.
21. The revisional application is, thus, disposed of.
22. Urgent certified photocopies of this order, if applied for, shall be given to the parties subject to compliance with all requisite formalities. Let a copy of this order be sent to the learned District Judge, Hooghly for communication to the learned Transferee Court at once.
(Syamal Kanti Chakrabarti, J.)