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Mansingh Vs. Sudhir Ganpatrao Girdhari and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtMumbai High Court
Decided On
Judge
Reported in1(1986)ACC191
AppellantMansingh
RespondentSudhir Ganpatrao Girdhari and ors.;and Sushila and ors.
Excerpt:
.....from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order..........to be followed by claims tribunal in holding inquires:(1) the following provisions of the code of civil procedure, 1908 shall so far as may be, apply to the proceedings before every claims tribunal, namely ;(a) sections 28, 79 and 82;(b) in so far as the act and these rules make no provision or make insufficient provision, the relevant provisions of the code of civil procedure, 1908 shall so far as may be, apply to the proceedings before the claims tribunal.clause (b) contains several provisions such as order 7,21,22 and 39 but it does not contain provisions of order 38, rule 5, which deals with attachment of the property before judgment. the learned advocate contended that in view of the clear provisions of rule 310 of the said rules, it was not open for the tribunal to.....
Judgment:

S.J. Deshpande, J.

1. Both these Revision Applications involve a common question in regard to the applicability of the provisions of Order 38, Rule 5 of the Civil Procedure Code to the proceedings before the Claims Tribunal, They are, therefore, disposed of by this common judgment,

2. The judgment is delivered in Civil Revision Application No 626 of 1983. The petitioner is the owner of a truck bearing No. MTS 3546, which was involved in an accident which led to the prosecution in Crime No. 235 of 1983. The proceedings before the Claims Tribunal, also arise out of the same accident. The claimant-Sudhir Ganpatrao Girdhari is the original petitioner before the Claims Tribunal. His claim for compensation is pending before the Tribunal in Claim No. 30 of 1983. The claim was filed against the driver of the truck and also the New India Assurance Company and owner of the truck.

3. During the pendency of the claim, it appears that the original claimant made an application on 7th December, 1983 stating that the owner of the truck is resident of Delhi. At present the truck is brought in Osmanabad jurisdiction and it is likely that the owner of the truck i.e petitioner herein may remove the truck from the local limits of the jurisdiction of the Court and if the truck is so removed, the claimant will not get effective relief. The claimant requested that the truck may be attached for the satisfaction of the amount of compensation that may be awarded by the Tribunal. This application was opposed by the owner and in answer to this application, it was contended that the said vehicle is in custody of the police station at Osmanabad and value of the vehicle involved in the custody is Rs. 3 Lakhs and the petitioner will suffer heavy losses if the same is attached at this state. It was contended in para 6 that the truck cannot be taken without following proper procedure. The application for attachment is not made bonafide and it may be dismissed.

4. After this reply was filed by the owner-petitioner it appears that the petitioner gave a solvent security to the police and obtained possession of the truck and it appears that he is plying the same.

5. The above application was granted by the Tribunal on 12th December 1983. The tribunal ordered that Truck No. MTS 3546 which was involved in the accident and which was lying with the owner be attached. He gave liberty to the petitioner to deposit cash amount of Rs. 17,000/- in Court at any time and submit application for raising the attachment before judgment and for possession of the truck. It was directed that the copy of the order be sent to the PS I Osmanabad for information.

6. It is against this order that the present revision application has been filed by the petitioner-owner of the truck. The first contention raised by the learned Counsel for the petitioner Shri Kapadia is that the order of the tribunal is without jurisdiction because the provisions of Older 38, Rule 5 of the Civil Procedure Code relating to attachment before judgment are not applicable to the Claims Tribunal at all. He invited my attention to the rules which lay down certain procedure in regard to the proceedings to be adopted by the tribunal. He also invited my attention to Rule 310 of the Bombay Motor Vehicles Rules, 1959, applicable to the State of Maharashtra. Rule 310 reads as follows:

Procedure to be followed by Claims Tribunal in holding inquires:

(1) The following provisions of the Code of Civil Procedure, 1908 shall so far as may be, apply to the proceedings before every Claims Tribunal, namely ;

(a) Sections 28, 79 and 82;

(b) In so far as the Act and these rules make no provision or make insufficient provision, the relevant provisions of the Code of Civil Procedure, 1908 shall so far as may be, apply to the proceedings before the Claims Tribunal.

Clause (b) contains several provisions such as Order 7,21,22 and 39 but it does not contain provisions of Order 38, Rule 5, which deals with attachment of the property before judgment. The learned advocate contended that in view of the clear provisions of Rule 310 of the said rules, it was not open for the Tribunal to exercise powers under Order 38, Rule 5 and direct attachment of the truck.

7. The learned advocate for the petitioner then contended that the powers which are vested in the Tribunal are of limited character and they are governed by Rule 294 and the original powers which are vested in the Court can be exercised by the Claims Tribunal. These powers are actually mentioned in Rule 294 which does not provide for powers under Order 38, Rule 5 which deals with attachment before judgment. The learned advocate for the petitioner contended that if the provisions are not applicable, the order of the Tribunal suffers from defect of jurisdiction. The contention of the learned advocate was that as there is omission to name the powers under Order 38,'Rule 5 in Rule 310, they cannot be attracted and they will not be applicable to the proceedings of the tribunal while holding enquiry.

8. The contention raised by the learned advocate is apparently attractive but it does not seem to be justified by the provisions of Rules themselves. Rule 3l0 at the end provides as follows :

In so far as the Act and these Rules make no provision or make insufficient provision, the relevant provisions of the Code of Civil Procedure, 1908, shall so far as may be, apply to the proceedings before the Claims Tribunal.

This provision has to be given effect to. The above provision in the rule clearly shows that in case there is no provision made by the rules and any provision made is insufficient, the relevant provision of the Code of Civil procedure shall, so far as may be, apply. The expression 'so far as may be' has to be given wider interpretation, This clearly points out the intention of the rule-makers that the Claims Tribunal was impliedly given discretion to apply provisions of the Civil Procedure Code which are relevant to the subject-matter in dispute. The expression ''relevant provisions of the Code of Civil Procedure, 1908' referred to in the above provision clearly shows that it has got reference to various kinds of reliefs prayed by the party at the interlocutory stage. In this case, the party is claimed relief under Order 38. Rule 5 of the Code. In considering whether Order 38, Rule 5 of the Code will be attracted or not when the Court intends to pass order of attachment before judgment, I think that this rule clearly empowers the Tribunal to act on the provisions of Order 38, Rule 5 of the Code. It is true that there is no mention as contended by the learned advocate for the petitioner. However, that does not deprive the Tribunal of exercising the powers under the said provision which is part of the said rule. The intention of the rule maker appears to be quite clear. Any omission made in the provision, therefore, cannot be a sufficient ground to deprive the Tribunal of the jurisdiction to apply provisions of Order 38, Rule 5. The question of attaching property before judgment arose before the Tribunal. The relevant provision of the Civil Procedure Code is contained in Order 38, Rule 5. If that be the position, 1 do not bee any reason why that provision should not be given full effect, There are other provisions which also may be relevant to understand the meaning of Rule 310. If one looks to the provisions of Rule 294(ii)(2) of the rules, which reads as follows:

For the 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.

This rule again makes it clear that the tribunal may exercise all or any of the powers of the Civil Court as may be necessary. The expression 'all or any of the powers of the Civil Court as may be necessary' must include the power under Order 38, Rule S also. The said rule further provides that the Tribunal has to apply this provision in the discharge of its function under the Act. Vesting of powers therefore, under this rule in the discharge of the functions under the Act certainly attracts the relevant provisions of the Civil Procedure Code and in my opinion, the combined effect of Rule 294(ii)(2) and Rule 310 clearly shows that the rule makers intended to give tribunal authority to exercise powers alike Civil Court following relevant provisions under relevant circumstances.

9. It may also be observed here that Rule 294 sets out certain sections which include Section 94 of the Civil Procedure Code. This also furnishes clear guidance to understand the scope and nature of the powers which the Tribunal is given in a particular case if necessity arises. Section 94 of the Code is a substantive provision which provides for supplemental proceedings. This provision contains in part VI of the Code of Civil Procedure under the heading' Supplemental proceedings.' It provides as under:

In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed ;

(a) ......

(b) direct the defendant to furnish security to produce any property belonging to him and place the same at the disposal of the Court or order the attachment of any property;

(c) ......

(d) ......

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.

Powers given under Section 94 are in fact general powers in regard to interlocutory proceedings. It is true that the details of the procedure are given in Schedule I relating to provisions such as Order 38, Rule 5. The Court acts on the provisions which are provided in the Schedule. Rule 294 provides application of Section 94 of the Civil Procedure Code which gives power to make interlocutory order in the supplementary proceedings which relates to the grant of interim reliefs as and when the necessity arises to the aggrieved party. I do not think that the legislature intended to restrict powers of the Tribunal and to hamper its functioning in regard to supplementary proceedings. In view of this provision which I have quoted above, and provisions of Sub-rule (2) of Rule 294 and Rule 310, 1 am of the opinion that the tribunal will be within jurisdiction to pass orders in regard to attachment before judgment also, although these provisions are not specifically provided by the said rule in the earlier part. The contention of the learned advocate for the petitioner that the Tribunal will have no jurisdiction to exercise powers under Order 38, Rule 5, therefore, fails and is rejected.

10. Rule 294 specifically names Section 94 of the Code which empowers the Court to pass interlocutory orders in supplemental proceedings. It will be unreasonable to assume that the rule making authority did not intend to give full effect to this. Section 94 authorises the Court to pass appropriate orders under Clause (b) in regard to provisions of attachment or production of the property. In the result, in my opinion, in view of provisions of Sub-rule (2) of Rule 294(ii) and Rule 310 read with provisions of Section 94 of the Code, while granting powers to the tribunal justifies conclusion that the tribunal will have powers in case if necessity arises, to pass order in regard to attachment of the property before judgment. Although these provisions are not mentioned in Rule 310, the combined effect of this would be that the rules which I have quoted above, do not leave any doubt that the tribunal is not deprived of the jurisdiction to exercise powers under Order 38, Rule 5.

11. The other contention raised by the learned advocate for the petitioner was that in this case if provisions of Order 38, Rule 5 are made applicable, the Court bas not considered the conditions and grounds on which such order can be passed, as laid down in that Rule. These conditions are not fulfilled in this case. Order 38, Rule 5 of the Civil Procedure Code provides as follows:

Where at any stage of a suit, the Court is satisfied, by affidavit of otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him :

(a) is about to dispose of the whole or part of his property, or

(b) is about to remove the whole or any part of the property from the local limits of the jurisdiction of the Court.

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sums as may be specified in the order, to produce and place at the disposal of the Court, when required, the property or the value of same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and shows cause why he should not furnish security.

(2) ....

(3) ....

(4) ....

In this connection, the learned advocate for the petitioner contended that the claimant has not made out any case for attachment of the truck before judgment. It is not shown that the petitioner is likely to remove the truck out of the jurisdiction of the Osmanabad Police Station and if the truck is remover', there will be difficulty in executing the decree that may be passed by the Tribunal. The learned advocate stated that there is insufficient statement of facts. Provisions of Order 38, Rule 5 require that the defendant must prove with cogent evidence that there are circumstances to exercise powers of attachment of the property before judgment, first such circumstance being that the defendant is likely to defeat the process of law or escape the process of law or the defendant is likely to make the decree ineffective. If such Circumstances are not proved, the orders of attachment cannot be passed.

12. It is true that the powers which are given under Order 38, Rule 5 are impliedly given to the tribunal under Rule 310 of the Motor Vehicles Rules which are special powers and are to be exercised by the Court after full satisfaction in regard to the conditions that such orders are necessary. In this case, the order of attachment made by the tribunal appears to be proper' and reasonable on the material placed before it. The truck, which appears to be the sole property of the owner was likely to be removed cut of the jurisdiction of the Court which may result in at least causing some difficulty in reaping the fruits of the decree. I am satisfied that the tribunal had sufficient material before it to pass such order, and the tribunal was right in accepting the ground for passing such order of attachment before judgment.

13. In the case, petitioner has obtained the truck from the police after giving security and he is actually plying the same. In these circumstances, I propose to modify the order of the tribunal in the following way. Instead of the wording 'cash amount of Rs. 17,000/-' the words 'security for Rs. 17,000/-' be substituted. 1 direct the petitioner to give solvent security of Rs. 17,000/-' to the satisfaction of the tribunal, that will be sufficient ground to raise the attachment.

14. In the result, the order of the tribunal is modified. Instead of the words 'cash amount of Rs. 17,000/- 'the words' security for Rs. 17,000/-' be substituted. If the security is already given by the petitioner, attachment of the truck ordered by the tribunal stands raised. In any event, I direct that the petitioner should furnish solvent security of Rs. 17,000/- in Civil Revision Application No 626 of 1983 and in Civil Revision Application No 627 of 1983 the petitioner should furnish security of Rs. 14,000/- within two months from the petitioner should furnish security of Rs. 14,000/- within two months from the date of receipt of the writ from this Court. On such securities being furnished, the attachment of the truck which is ordered by the Tribunal stands raise, and will cease to have any effect.

15. Rule distharged. No order as to costs.


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