- (1.) THE Judgment of the Court was as follows : In the instant revisional application Order No. 147 dated 06.01.2007 passed by the learned Civil Judge (Senior Division), 2nd Court, Hooghly in Misc. Case No. 16 of 2005 arising out of Transfer Execution Case No. 01 of 1997 has been assailed. By such order learned Court below has disposed of an application dated 26.09.2005 filed by the judgment debtor questioning jurisdiction of the Court to execute a transferred award passed by the learned Motor Accident Claims Tribunal, 10th Bench, City Civil Court, Calcutta in M.J.C. Case No. 162/87 followed by M.J.C. Execution Case No. 06 of 1995.
(2.) THE brief fact of this case is that one Dwijendra Nath Chowdhury instituted an accident claim case being M.J.C. No. 162 of 1987 before the 10th Bench of City Civil Court, Calcutta against Durga Sankar Sana and Uma Shankar Saha being owners of the offending vehicle and Oriental Insurance Company Limited. THE said case was decided with an award of Rs.70,000/- with cost of Rs.101/- on 28.07.1994 with interest at the rate of 15%. THE insurer paid Rs.15,000/- with interest in compliance with the order through Small Causes Court, Calcutta on 29.06.1998. THEn the decree holder filed Execution Case being M.J.C. Execution Case No. 06 of 1995 on 04.07.1995 and after his death on 23.01.1996 the present petitioners have been substituted on 24.06.1996. As the properties of judgment debtors i.e., owners of the offending vehicle situates within the jurisdiction of Serampore Police Station of Hooghly District, said Execution Case was transferred by order dated 10.10.1996 to the learned District Judge, Hooghly who by order dated 22.01.1997 has transferred the case to the learned Civil Judge (Senior Division) 2nd Court, Hooghly which is renumbered as Transfer Execution Case No. 1 of 1997. Meanwhile the decree holders in Transfer Execution Case No. 1 of 1997 filed an application dated 10.01.2005 under Order 21 Rule 66 read with Section 62 and 151 of the Civil Procedure Code for fixing a date for settling Public Auction Sale Proclamation of the attached immovable properties of the judgment debtors filed in the case being Misc. Case No. 16 of 2005 on 28.06.2005 in Transfer Execution Case No. 1 of 1997 praying for dismissal of the said execution case and for release of the properties and Route Permit of Vehicle No. W.G.A. 6070 attached by order No. 68 dated 19.10.2001. During pendency of said Misc. Case No, 16 of 2005, the judgment debtors have filed another application on 26.09.2005 challenging jurisdiction of the learned Civil Judge (Senior Division), 2nd Court, Hooghly at Chinsurah to entertain the Transfer Execution Case No. 1 of 1997. By order No. 147 dated 06.01.2007 the learned Civil Judge (Senior Division) held that the said Court is a Civil Court and not a Motor Accident Claims Tribunal and as such he has no jurisdiction to execute the award granted by such Tribunal. It was contended before the learned Court below that there is a Motor Accident Claims Tribunal at Chinsura, in the District of Hooghly. Therefore, the Civil Court has got no jurisdiction to execute the award on transfer of the decree in Execution Case No. 6/1995. The learned Court below is of the view that if in the special Act there is provision for execution of the decree, the general provision as contained in the Civil Procedure Code will not be applicable. In the instant case there is a specific provision like Sections 110 and 110F of the Motors Vehicles Act, 1939 to be read with Sections 174 and 175 of the said Act. Therefore, he has allowed the prayer giving liberty to the decree-holder/opposite party to move this matter before the appropriate forum for execution of the award.
(3.) BEING aggrieved by and dissatisfied with such order the instant application has been preferred by the decree holder/claimants. The learned Lawyer for the petitioners herein submits that the learned District Judge has transferred the decree for execution without considering true interpretation of Section 100F of the Motor Vehicles Act particularly the meaning of 'jurisdiction to entertain' which means "to receive and deliberate". It is further contended that in terms of Section 100F of the Motor Vehicles Act Civil Court jurisdiction has not been ousted rather the Claims Tribunal has been constituted for the purpose of discharging the same functions and duties in the same manner as a Civil Court is expected to do. Learned Court below has also failed to consider that execution case is maintainable and the award can be executed like a decree under Order 21 of the Civil Procedure Code and the decree-holder /award-holder has a right to seek certificate under Section 110E corresponding to amended Section 174 of the Motor Vehicles Act, 1988 and he has the option to file the application to the Civil Court. From the rival contentions of the parties it appears that the only point for my consideration is to see how a transferred award given by the MAC Tribunal will be executed by the transferee Court in absence of any specific provision in the Motor Vehicles Act. Learned Lawyer for the petitioners has claimed that it will be governed under the relevant provisions of the Code of Civil Procedure, 1908 while learned lawyers for the judgement debtor / opposite parties has claimed that the same will be governed under the Motor Vehicles Act, 1988 and Rules framed thereunder. Therefore, for the sake of convenience the relevant provisions of the Code of Civil Procedure are quoted below: "Section 30. Decree for payment of money. -Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both. "Order XXI, Rule 6. Procedure where Court desires that its own decree shall be executed by another Court. -The Court sending a decree for execution shall send- (a) a copy of the decree; (b) a certificate setting forth that satisfaction of the decree has not been obtained by execution within the jurisdiction of the Court by which it was passed, or, where the decree has been executed in part, the extent to which satisfaction has been obtained and what part of the decree remains unsatisfied; and (c) a copy of any order for the execution of the decree, or, if no such order has been made, a certificate in that effect." "Order XXI, Rule 8. Execution of decree or order by Court to which it is sent. -Where such copies are so filed, the decree or order may, if the Court to which it is sent is the District Court, be executed by such Court or be transferred for execution to any subordinate Court of competent jurisdiction." On the contrary the Motor Vehicles Act, 1988 and the Rules framed thereunder also lay down the following procedure for enforcing the orders passed by the Claims Tribunal. "Motor Vehicles Act, 1988. Section 110E. 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. Section 110F. Where any Claims Tribunal has been constituted for any area, no Civil Court shall have jurisdiction to entertain any question relating to any claims for compensation which may be adjudicated upon by the Claims Tribunal for that area, and no injunction in respect of any action taken or to be taken by or before the Claims Tribunal in respect of the claim for compensation shall be granted by the Civil Court. Section 174. 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." "West Bengal Motor Vehicles Rules, 1989. Rule 342. Power vested in Civil Court which may be exercised by Claims Tribunal. -(1) Without prejudice to the provisions of subsection (1) of Section 169 of the Act every Claims Tribunal may exercise all or any of the powers vested in a Civil Court under the following provisions of the Code of Civil Procedure, 1908 (5 of 1908) as subsequently amended, in so far as they may be applicable, namely, Sections 30, 32, 34, 35, 35A, 75(a) and (e), 76, 77, 94, 95, 132, 133, 144, 145, 147, 148, 149, 151, 152, 153A and 153B and subject to the provisions of the Section 174 of the Act. (2) Any Claims Tribunal constituted for Calcutta where the amount of compensation awarded by it does not exceed Rs.25,000/- shall have all the powers of the City Civil Court, and where such amount exceeds Rs.25,000/- shall have all the power of the High Court, for the purpose of execution of the a ward, as if the a ward is a decree for the payment of money made in suit by the City Civil Court or the High Court, as the case may be. (3) Any Claims Tribunal constituted for West Bengal (outside Calcutta) shall have all the powers of the principal Civil Court of a district for the purpose of execution of any award for compensation made by it, as if the award is a decree for the payment of money made in a suit by such Court. (4) For purpose other than those specified in sub-rule (1), the Claims Tribunal may exercise all or any of the powers of Civil Court as may be necessary in any case for discharging its functions under the Act and these rules." ;