Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/08/2013 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.R.P(NPD)(MD)NO.1423 of 2013 and M.P.(MD)No.1 of 2013 M/s.Hotel Supreme Private Limited, No.10, West Perumal Maistry Street, Madurai-1 ..Petitioner/Respondent/Respondent vs P.Kannan ..Respondent/Petitioner/Claimant/ Respondent PRAYER Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decretal order passed in E.A.No.33 of 2012 in E.P.No.41 of 2012 in M.C.O.P.No.1532 of 2008, on the file of the learned Chief Judicial Magistrate(Motor Accident Claims Tribunal).Madurai, dated 4.6.2013 !For Petitioner :M/s.V.Kannan :ORDER
The respondent in the main Civil Revision Petition made a claim in the said M.C.O.P for compensation arraying the revision Petitioner as fiRs.respondent, being the owner of the offending vehicle and the New India Assurance Company Limited, being the second respondent on the premise that the vehicle in question had been insured with the said Insurance Company on the date of alleged accident namely 6.5.2008.
The revision Petitioner who chose to enter appearance in the MCOP, filed a counter affidavit contending that the vehicle had been sold to one Nedunchezhian before the date of accident and that hence the revision Petitioner was not liable to pay compensation.
2.
The Insurance Company disclaimed its liability and contested the M.C.O.P.The revision Petitioner who figured as fiRs.respondent in the M.C.O.P failed to contest the same and hence the enquiry in the M.C.O.P was proceeded after setting the revision Petitioner exparte and having the Insurance Company alone as the contesting respondent.
Ultimately, the Motor Accident Claims Tribunal held that the revision Petitioner was the owner of the offending vehicle and hence was liable to pay compensation to the claimant.
At the same time, it accepted the claim of the Insurance Company that it was not liable to pay the compensation and thus directed the revision Petitioner alone to pay compensation amount ordered in the award.
A sum of Rs.2,30,000/- with interest and costs was awarded as compensation.
The Petitioner who did not contest the M.C.O.P, perhaps on the hope that the M.C.O.P would be contested by the insurer.
After passing of the award which was against the revision Petitioner alone exonerating the Insurance Company, the revision Petitioner has chosen to take steps to get the award set aside and stay the execution proceedings initiated by the claimant in E.P.No.41 of 2012 on the file of the Motor Accident Claims Tribunal (Chief Judicial Magistrate).Madurai.
We are not concerned with the application that might have been filed on the trial side to set aside the exparte award.
The order passed in E.A.No.33 of 2013 in E.P.No.41 of 2012 in M.C.O.P.No.1532 of 2008 on the file of the Motor Accident Claims Tribunal(Chief Judicial Magistrate).Madurai alone is challenged in the present Civil Revision Petition.
The said execution application was filed under Order 21 Rule 26 of the Civil Procedure Code praying for stay of execution.
Though the Tribunal might have assigned other reasons, the order dismissing the execution application can be sustained on the short ground that Order 21 Rule 26 of Civil Procedure cannot be invoked on the execution side, when the execution petition has been filed in the very same court which passed the decree or award.
Order 21 Rule 26 of Civil Procedure Code deals with the power of the Court to which a decree or award has been sent for execution to stay the execution proceedings for a limited time so as to enable the judgement debtor to apply to the Court/Tribunal which passed the decree or award or the appellate Court for stay of execution of the decree.
The said provision cannot be invoked in the Court/Tribunal which passed the decree/award itself is executing the decree.
In such cases, the application should not have been filed on the execution side and such application should have been filed on the trial side.
The proper provision is Order 41 Rule 5(2) of Civil Procedure Code.
Or else the Petitioner would have filed an appeal and sought the order of stay in the appellate Court under Order 41 Rule 5 of Civil Procedure Code.
As the revision Petitioner has chosen to file the petition under a wrong provision, the order of the Tribunal dismissming the application can be sustained on the above said ground alone.
For the above said reasons, this Court comes to the conclusion that the revision Petition deserves to be dismissed and accordingly, the Civil Revision Petition is dismissed.
Consequently, connected Miscellaneous Petition is dismissed.
No costs.
versus To The Motor Accident Claims Tribunal (Chief Judicial Magistrate).Madurai.