Himachal Pradesh High Court
United India Insurance Co. Ltd. vs Nirmala Chauhan And Anr. on 3 August, 2000
Equivalent citations: I(2001)ACC225, 2001ACJ1089
Author: Kuldip Chand Sood
Bench: Kuldip Chand Sood
JUDGMENT Kuldip Chand Sood, J.
1. Two important questions of law which arise in these three petitions are:
(i) Whether an application for restitution under Section 144 of the Code of Civil Procedure would be maintainable in a case arising out of an award made under Section 168 of the Motor Vehicles Act, 1988 ('Act' for short), in spite of the remedy available under Section 174 of the Act?
(ii) Whether such petition is maintainable before the appellate court which modified the award of the Tribunal?
2. To appreciate the points involved, it is necessary to notice the relevant facts.
3. This court, vide a common judgment dated 5.8.1999, disposed of three above noted appeals and modified the award of the Motor Accidents Claims Tribunal to the extent that appellant insurance company (United India Insurance Co. Ltd.), was absolved of its liability to pay the amount of compensation holding that it is the respondent, owner of the vehicle, who is liable to pay the entire amount of compensation.
4. The execution of the impugned award(s) was stayed by this court subject to the condition of the deposit of award(s) amount by the insurance company. Pursuant to these orders, insurance company deposited the entire amount of award(s). During the pendency of the appeal, this court, on an application moved by the claimants-respondents, directed release of Rs. 25,000 in F.A.O. No. 57 of 1992, Rs. 3,00,000 in F.A.O. No. 72 of 1992 and Rs. 12,500 in F.A.O. No. 102 of 1992. It is in this context that above application(s) under Section 144 of the Code of Civil Procedure have been filed for restitution on behalf of the insurance company.
5. It is the case of the insurance company that since the amount was released from the amount which was deposited by the insurance company, during the pendency of the appeal, therefore, the insurance company is entitled to get back the amount from the claimants who had withdrawn that amount pursuant to the orders of this court. The insurance company prays that claimants-respondents who are liable to restore that amount to the insurance company be directed to refund that amount.
6. We have heard Mr. Ramakant Sharma, learned counsel for the petitioner and Mr. M.L. Chauhan, learned counsel for respondent No. 1.
7. Section 144 of the Code of Civil Procedure may be reproduced for convenience:
144. (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose, the court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified; and for this purpose, the court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.
Explanation.-For the purposes of Sub-section (1), the expression 'court which passed the decree or order' shall be deemed to include,-
(a) Where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the court of first instance;
(b) Where the decree or order has been set aside by a separate suit, the court of first instance which passed such decree or order;
(c) Where the court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1).
8. A bare perusal of Section 144 shows that provision is designed to enable a party, other than the decree-holder, for restitution of the benefit which the other party might have received under a decree or order which is subsequently wholly or partly reversed or varied. It contemplates a situation where a decree or order might have been executed during the pendency of the appeal against it and the decree so executed is later set aside or varied. The legislative intent appears to be that no party should be allowed to enjoy the fruits of a decree or order which has been set aside or varied in appeal and is nonexistent in the eyes of law.
9. The Apex Court in Union Carbide Corporation v. Union of India, AIR 1992 SC 248, observed:
Restitution is an equitable principle and is subject to the discretion of the court. Section 144, Code of Civil Procedure, embodying the doctrine of restitution does not confer any new substantive right to the party not already obtaining under the general law. The section merely regulates the power of the court in that behalf.
10. In other words, Section 144, Civil Procedure Code, does not create any new right to the party. It merely reiterates and regulates the right obtained pursuant to a decree or order of the court. The provision is simply regulatory in nature. Their Lordships, in Union Carbide's case, AIR 1992 SC 248, quoted with approval the following observations in Binayak v. Ramesh (1966) 3 SCR 24:
.. .The principle of the doctrine of restitution is, that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the court in making restitution is bound to restore the parties, so far as they can be restored, to the same position they were in at the time when the court by its erroneous action had displaced them from....
11. It thus is manifest that the application for restitution is nothing but a step towards the execution of the decree or order.
12. Interpreting the provisions of Section 144 in Mahijibhai Mohanbhai Barot v. Patel Manibhai Gokalbhai, AIR 1965 SC 1477, their Lordships observed:
...When a party, who lost his property in execution of a decree, seeks to recover the same by reason of the appellate decree in his favour, he is not initiating any original proceedings, but he is only concerned with the working out of the appellate decree in his favour. The application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie, therefore, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree.
(Emphasis supplied)
13. This position was reiterated by the Apex Court in Maqbool Alam Khan v. Khodaija AIR 1966 SC 1194 and it was held that an application for restitution under Section 144 of the Code of Civil Procedure is an application for execution of a decree.
14. Now Section 174 of the Motor Vehicles Act, 1988 provides for enforcement or execution of the award of the Tribunal. Section 174 reads:
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.
15. It may be noticed that Section 174 of the Act expressly provides for a special mode of recovery of award amount through the Collector who has to proceed to recover the same as arrears of land revenue.
16. A careful perusal of Chapter XII of the Act shows that legislature has provided for a special mode and machinery for the adjudication of claims for compensation in respect of accidents involving death of or bodily injury to, persons arising out of the use of motor vehicle. It provides for the constitution and establishment of the Claims Tribunal (Section 165 of the Act), presentation of claim application(s) (Section 166 of the Act), procedure and powers of the Claims Tribunal (Section 169 of the Act), passing of an award (Section 168 of the Act), award of interest where any claim is allowed (Section 171 of the Act), award of compensatory cost (Section 172 of the Act), appeals (Section 173 of the Act), enforcement or execution of the award (Section 174 of the Act). We have already observed that restitution under Section 144 does not create any substantive right but is merely an execution of the award which has been reversed or varied in an appeal.
17. Section 174 of the Motor Vehicles Act, 1988 is in pari materia to Section 110-E of the Motor Vehicles Act, 1939, which may also be reproduced:
110-E. Recovery of money from insurer as arrear 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.
18. A Full Bench of the Rajasthan High Court had occasion to interpret the provisions of Sections 110 to 110-F of 1939 Act in Rajasthan State Road Trans. Corporation v. Kistoori Devi 1986 ACJ 960 (Rajasthan). The Full Bench took a view that the Act is self-contained which deals not only with the procedural law but also with the substantive law as it makes provision for the constitution of the Claims Tribunal to provide a cheap and speedy remedy of enforcing liabilities arising out of the use of motor vehicles. The Full Bench quoted with approval the following observations in Megjibhai Khimji Vira v. Chaturbhai Taljabhai 1977 ACJ 253 (Gujarat):
For the above reasons, we are inclined to think that the introduction of Sections 110-A to 110-F in the 1939 Act have brought about certain radical changes impinging upon the provisions contained in Sections 1-A and 2 of the 1855 Act. We, therefore, cannot agree with the learned counsel for the appellants that the change brought about by the introduction of Sections 110-A to 110-F in the 1939 Act was merely adjectival or procedural in nature. Clause (b) of Sub-section (1) of Section 110-A and Section 110-B of the 1939 Act clearly deal with substantive law and being wider in scope than Sections 1-A and 2 of the 1855 Act, must prevail over the general law. In view of the difference in the language of Sections 1-A and 2 of 1855 Act and Sections 110-A and 110-B of the 1939 Act, we are of the opinion that the latter Act being a special Act, must override the general law contained in the former Act.
(Emphasis supplied)
19. The Full Bench in Rajasthan State Road Trans. Corpn. case 1986 ACJ 960 (Rajasthan), speaking through Kasliwal, J., as his Lordship then was, observed:
Thus, all the above provisions leave no manner of doubt that Sections 110 to 110-F of the Act provide not only procedural provisions but also contain substantive provisions and these provisions being special provisions dealing with the accidents arising out of the use of motor vehicles, they will have the effect of overriding provisions of Fatal Accidents Act.
20. We hardly need to emphasise that where a special statute provides for a particular remedy to be sought in a particular forum in a particular manner, it must then be sought in that forum and in that manner and all other forums and modes seeking such remedy are excluded. [See: Munshi Ram v. Municipal Committee, Chheharta AIR 1979 SC 1250].
21. We are, therefore, of the view that Section 174 of 1988 Act provides for the enforcement of the award, both by way of execution and restitution.
22. Application(s) of the insurance company is nothing but the enforcement of the award of the Motor Accidents Claims Tribunal which merged into the award made by this court in the appellate jurisdiction and, therefore, the remedy for the recovery of the money available to the insurance company is under Section 174 of the Act by filing appropriate application before the Claims Tribunal and not by way of present petition(s) under Section 144 of the Code of Civil Procedure, before this court.
(ii) Whether such petition is maintainable before the appellate court which modified the award of the Tribunal'!
23. Section 174 of the Act specifically contemplates filing of the application for enforcement of an award before the Motor Accidents Claims Tribunal. The Claims Tribunal, in turn, shall issue a certificate for the amount to the Collector who shall proceed to recover the same as arrears of the land revenue. There is no scope for dispute that such a petition is maintainable only before the Tribunal which passed the original award and not before the appellate court which modified the award of the Tribunal.
24. This apart, even an application under Section 144 of the Code of Civil Procedure can only be made before the court which decided the case in the first instance and not before the court which reversed, modified or varied the decree under which restitution is sought.
25. A plain reading of Section 144 of the Code shows that it is only the court of the first instance which can grant relief by way of restitution. The superior court which varied or reversed the decree or order, cannot be called upon to grant relief by way of restitution.
26. It is now well settled that restitution can only be granted by the court which executes the decree and not by an appellate court. [See: Kunwar Rohani Ramandhwaj Prasad Singh v. Thakur Bar Prasad Singh AIR 1943 PC 189; Rajendra Bharati v. M.P. Dube AIR 1971 MP 231; State Bank of Saurashtra v. Chitranjan Ranganath Raja AIR 1980 SC 1528 and AIR 1928 Patna 502].
27. The Apex Court in State Bank of Saurashtra v. Chitranjan Ranganath Raja AIR 1980 SC 1528, observed thus:
The limited question is whether this court can grant restitution. Prior to the Amendment Act, 1976, an application for restitution under Section 144 in all cases had to be made to the court of first instance. Even after the amendment the substituted expression 'the court which passed the decree or order' would as per Clause (a) of the Explanation, mean the court of first instance because the expression 'court which passed the decree or order' has been deemed to include where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the court of first instance. The present one is the simplest case where the suit in favour of the appellant and against the surety was decreed by the trial court, i.e., the court of first instance, and this decree has been reversed by the High Court in exercise of its appellate jurisdiction. In such a situation, Clause (a) of the Explanation would be attracted and an application for restitution will have to be made to the court of first instance, i.e., the court of Civil Judge, Senior Division, Gondal. It is nowhere suggested that such a court does not exist. Therefore, it would not be proper for this court to direct restitution. However, there will be no justification for the appellant bank to withhold the amount which was collected from the surety on a mere demand. Therefore, an application for restitution made by the surety would not lie to this court and it would stand disposed of accordingly.
28. In view of the law explained above, we are of the considered view that petition for restitution under an award which is set aside, varied or modified by a superior court is maintainable only before the court of first instance, i.e., the Motor Accidents Claims Tribunal and not before the court which varied or modified the award.
29. Our answer to the questions is:
(i) An application for restitution under Section 144 of the Code of Civil Procedure is merely a step towards the execution or enforcement of the award made under Section 168 of the Motor Vehicles Act, 1988 as varied or modified by the superior court, and
(ii) Such enforcement of the modified or varied award can only be made by resorting to the provisions of Section 174 of the Act by filing appropriate application before the concerned Motor Accidents Claims Tribunal.
30. In result, the petitions are rejected.