VIRENDRA KUMAR Vs. SHIV PRASAD AND OTHERS

JUDGEMENT

(1.) 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.

(2.) Learned counsel for the petitioner has made, the following submissions:-

(3.) 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 Oriental Insurance Co. Ltd. vs. Shri Kishan Chand and Others, 2015 3 TAC 663 (H.P.) and the same is being reproduced here as under:-