SHANTABAI S CACULO Vs. NAZIAZENO FERNANDES

JUDGEMENT

(1.) THE appellants had filed a suit for injunction seeking to restrain the respondent from executing Proceedings No. 31/62 on the ground that the said proceedings and application dated 6-5-1987 were without jurisdiction and null and void. An application for temporary injunction was filed which has been rejected by Civil Judge, S. D. Panaji vide impugned Order dated 17th August, 1993 which is subject matter of challenge in this appeal. In order to appreciate the controversy between the parties, it is necessary to have a birds eye view of what had transpired prior to the filing of this suit for permanent injunction.

(2.) THE truck belonging to the respondent was insured with the Companhia de Seguros de Bonanca (a Portuguese Insurance Company) which was represented in Goa by its general Agent Shridhora S. B. Caculo. The said truck had met with an accident and on 24-9-1962 the respondent filed an application against the said Insurance Company in which claim for damages sustained by the truck in the accident was put up. In view of the arbitration clause in the insurance contract, it was prayed in the said application that the Arbitrators be appointed to decide the claim for damages. The respondent served a notice on the firm M. S. B. Caculo represented by its successor Shridhora S. B. Caculo as Agent of the said Insurance Company in Goa and the said firm carried the vehicle to a workshop at Margao which belonged to one Francisco Santos. The Arbitrators made. award dated 5th March, 1965. In the said Award the said firm was directed to hand over the truck duly repaired to the respondent and to pay a sum of Rs. 1,875/- per month from 18-10-1961 till the date of actual delivery. The Award was not satisfied and, as such, execution proceedings were initiated by the respondent against the said firm. The firm which was represented by Shridhora S. B. Caculo objected to the execution proceedings on the ground that the said Award was not binding on the firm as the Award had been passed against the said Insurance Company. The trial Court vide Order dated 17-7-1967 upheld the objections and dismissed the execution proceedings. The present respondent filed Agravo Appeal No. 35/69 against the said order in the erstwhile Court of Judicial Commissioner. The learned Judicial Commissioner did not agree with the lower Court that execution petition was filed against the firm and not against the General Agent of the Insurance Company. Accordingly, the learned Judicial Commissioner remanded the matter to the lower Court with a direction to find out whether the respondent therein is the Agent of the said Insurance Company and then disposed of the execution petition in accordance with law. From paras 3, 4 and 5 of the judgment dated 17-7-1970 it is clear that the learned Judicial Commissioner had held that the matter as to whether or not proceedings had been properly instituted had been settled as undoubtedly the execution proceedings had been instituted against the General Agent of the said Insurance Company. What was left open for decision of the trial Court was to find out whether the respondent therein continued to be agents of the said Insurance Company or not. The trial Court, on remand, by order dated 2nd December, 1981, held that the decree was actually against the said Firm in its capacity as General Agent of the Company and the Award was passed when the firm was still agent for the company. It had also been observed by the trial Court that even assuming that thereafter the firm ceased to be Agent (which fact had not been proved) the liability still subsists. This order of the trial Court was challenged before the erstwhile Court of Judicial Commissioner in First Appeal No. 1/82 which was converted into Civil Revision No. 171/84. When the said Revision came up for hearing, the Advocate for the predecessor of the present appellants sought leave of the Court to withdraw the revision application with the liberty to take available legal steps in the matter. The revision was allowed to be withdrawn and liberty was granted to take available legal steps in the matter. The parties agreed that the finding in the execution proceedings will not bind them in future proceedings that may be filed by the present appellants. This order is dated 20th February, 1985. Even thereafter Shridhora S. B. Caculo filed an application on 20-3-1986 in the execution proceedings for stay on the ground that he wanted to file a separate suit. This application was rejected by the trial Court vide order dated 4-10-86. The said Shridhora S. B. Caculo expired on 8-3-87 and the present appellants were brought on record as his legal heirs after which they participated in the said proceedings. On 19-4-1988 the present appellants filed an application under section 47 of C. P. C. This application was rejected by the trial Court on 21-1-1989. This order dated 21-1-1989 was assailed before this Court in Civil Revision Application No. 75/89. This revision was dismissed on 8-3-1990. In para 8 of this judgment, it was observed that the matter as to whether or not the proceedings had been properly instituted had been settled since undoubtedly the execution proceedings had been instituted against the General Agency of the said Insurance Company and what was left open by way of direction was that the Executing Court should decide whether the said firm continued or not to be agent of the Insurance Company. It was also observed in this judgment that in order dated 20th February, 1985 in Civil Revision Application No. 171/84 liberty was granted to take available steps in the matter. The parties had agreed that the findings in the execution proceedings will not bind the parties in future proceedings that may be filed by the firm. In view of the same, it was not open to the firm to raise the objection once again under section 47 of C. P. C. and the remedy left was to file any other proceedings in the matter which are permissible in law.

(3.) THUS, after spending more than two decades raising objections against execution and challenging the same before the Judicial Commissioners Court/high Court, the appellants have instituted the present suit seeking to declare the proceedings and application dated 6-5-87 as being without any jurisdiction, null and void.