KALOORAM Vs. ALLANOOR

JUDGEMENT

(1.) The instant appeal has been filed under Order 43 Rule 1 CPC read with Section 110-D of the Motor Vehicle Act, 1939 read with Section 173 of the Motor Vehicle Act, 1988 against the order dated 24.9.1994 passed by Addl. District & Sessions Judge, Nagaur in Civil Misc. Case No. 4/94.

(2.) According to the facts of the case, a claim petition was filed by respondent Nos. 1 and 2 for compensation because son of respondent Nos. 1 and 2 died in an accident occurred on 28.11.1981 upon the road situated in between Nagaur to Mundawa due to rash and negligent driving of appellant Kalu Ram. Learned trial Court passed as award on 17.8.1992 whereby compensation of Rs. 1,08,400/- along with interest @ 12% from the date of filing claim which is dated 22.4.1982 was allowed. The said award was passed ex-parte against the appellant Kalu Ram and one Ram Bux and according to the award 50% of liability was imposed upon the Insurance Company and for rest of the amount appellant Kalu Ram and Ram Bux were held liable to pay.

(3.) After passing, the aforesaid award by the Motor Accident Claims Tribunal, Nagaur, the execution proceedings were initiated against the appellant Kalu Ram and Ram Bux. After initiating execution proceedings, an application under Order 9 Rule 13 read with Section 151 CPC for setting aside the ex parte order dated 4.2.1983 was filed on 16.2.1994. Upon the said application filed by the appellant Kalu Ram, the notices were issued and thereafter respondents filed their reply and brought to the notice of the trial Court that inspite of service appellant-non-petitioner Kalu Ram did not appear before the Court on 4.2.1983, therefore, the order of ex-parte was passed by the Court. Thereafter, the matter was transferred to the Addl. District & Sessions Judge, Nagaur where again notice was issued to Kalu Ram and after receiving notice his counsel Mr. Nand Kishore Acharya appeared and participated in the proceedings and finally award was passed on 17.8.1992 but till passing of the award, no application for setting aside the ex-parte order dated 4.2.1983 was filed by the appellant nor he has ascertained what proceedings are going on. Therefore, at this stage, in the year 1994, such an application filed by Kalu Ram is totally untenable and suffers from gross delay which too is not explained. Learned trial Court while rejecting such application filed under Order 9 Rule 13 CPC held that the reasons mentioned in the application for setting aside the exparte order dated 4.2.1983 are not acceptable because after six years when notices were issued by the Court where the case was transferred, no efforts were made by the appellant for setting aside the ex parte order dated 4.2.1983. Further, it is observed that even after service and upon appearing before the Court through counsel Nand Kishore, no efforts were made to file an application for setting aside the ex-parte order dated 4.2.1983 and for the first time in the year 1994, such an application has been moved that too when execution proceedings were initiated against the appellant Kalu Ram. Learned trial Court dismissed the application on 24.9.1994 which was filed on 16.2.1994, that too, after passing the award by the Tribunal.