Siddhartha Varma, J. - (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:- I. When once the application which was numbered as execution case no. 90 of 2002 was dismissed on 7.4.2005 then a notice ought to have been issued as per the Order XXI Rule 22 of the Code of Civil Procedure, 1908, as it would amount to initiating execution after two years of the passing of the award. II. Further he also submitted that as per the provisions of Section 11 of the Code of Civil Procedure which have been explained by explanation VII of the Section 11, the second Application which was numbered as Execution Case no. 400 of 2005 was barred by principles of res judicata. He also cited Ragunath Das and Others vs. Sundar Das Khetri and another, 1914 AIR(PC) 129 and Satyanarain Bajoria and Another vs. Ramnarain Tibrewal and Another, 1993 4 SCC 414 to bolster his 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:- "14. Order of dismissal in default is not a decree in terms of the mandate of Section 2(2) (b) of CPC. It is apt to reproduce Section 2(2) of CPC herein: "2. ................. (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an appeal from an order, or (b) any order of dismissal for default. Explanation. - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." Thus, it can be safely said that doctrine of res judicata is not applicable.";