Dastagir HussaIn Nadaf Vs. Maharashtra Apex Corporation Ltd. - Court Judgment

Excerpt:
civil procedure code, 1908 (central act no. 5 of 1908) order 21 rule 11(2) - execution petition to be signed by decree holder or person acquainted with the facts of the case -- lawyer engaged not person 'acquainted with the facts of the case''.;(i) the execution petition should be signed either by the decree holder or someone else who is acquainted with the facts of the case. the lawyer engaged cannot be said to be a person acquainted with the facts of the case. the lawyer, will not come within the phraseology 'by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.'; - rule 11a -- not proper to consider prayer for arrest without affidavit.;arrest is a very serious relief. it may not be proper unless the execution is supported by an affidavit, for the court to consider the request for arrest and detention. - motor vehicles act, 1988 [c.a. no. 59/1988]sections 147 & 149: [n. kumar, j] liability of insurer - contention that the policy is not taken in the name of the owner of vehicle - held, before a liability could be foisted on the insurance company, there should be a policy of insurance as contemplated under section 147 of the act. it should be a policy issued by the authorised insurer insuring the person or classes of persons specified in the policy to the extent specified in section 2 against any liability. the parliament has consciously used the expression issued by the insurer in favour of the person by whom the policy is effected. therefore, the policy to be issued is in favour of the person who pays the premium and not necessarily in favour of the owner. in the entire section 147, or chapter xi the word owner is conspicuously missing. therefore, in construing the aforesaid provision, one cannot read it in to the said section the definition of owner to find out whether the policy issued is in the name of the owner. the whole principle underlying the concept of insurance is to indemnify the insured who pays the premium and covers the personal risk of himself. once he takes a valid policy and pays the premium and covers the risk, he is entitled to be indemnified. similarly, in a third party claim, when the claimant makes the insured a party to the claim petition and obtains a judgment or award, he is entitled to be paid compensation awarded under statute as contained in section 149 of the act. in either event, no question of ownership of the vehicle insured arises.section 147; [n. kumar, j] insurers liability - award of rs.10,000/- as compensation and fastening liability on insurer - insurer claiming that policy was not taken in the name of the owner - non-consideration of fact by the tribunal - held, before a liability could be foisted on the insurance company, there should be a policy of insurance as contemplated under section 147 of the act. it should be a policy issued by an authorised insurer insuring the person or classes of persons specified in the policy to the extent specified in section 2 against any liability. the parliament has consciously used the expression issued by the insurer in favour of the person by whom the policy is effected. therefore, the policy to be issued is in favour of the person who pays the premium and not necessarily in favour of the owner. in the entire section 147 or chapter xi, the word owner is conspicuously missing. therefore, in construing the aforesaid provision, one cannot read it in to the said section the definition of owner to find out whether the policy issued is in the name of the owner. on facts, held, once the policy holder suffers a judgment and award at the hands of the claims tribunal and once he has taken a policy as required under section 147 of the act by virtue of section 149 of the act, the insurance company is bound to indemnify the said insured. the said insured need not be the owner of the vehicle on the date of the accident. therefore, the tribunal committed no illegality in foisting the liability on the insurance company.section 147; [n. kumar, j] concept of insurance - held, the whole principle underlying the concept of insurance is to indemnify the insured who pays the premium and covers the personal risk of himself. once he takes a valid policy and pays the premium and covers the risk, he is entitled to be indemnified. similarly, in a third party claim, when the claimant makes the inured a party to the claim petition and obtains a judgment or award, he is entitled to be paid the compensation awarded under statute as contained in section 149 of the act. in either event, no question of ownership of the vehicle insured arises. what is germane is, whether the vehicle involved in the accident is validly insured, whether insured is made a party to the claim petition and whether any judgment or award is passed against the insured. once these conditions are satisfied, the insurance company is liable to indemnify the insured and pay the amount to the claimants. any other interpretation would not serve the object or purpose of the act, which is a social as well as a welfare legislation - 17/1981 ordering judgment-debtors-1 to 3 to pay the decretal amount in three equal monthly instalments and on failure to pay the decretal amount as directed, judgment-debtors-1 and 2 shall be kept in civil prison for 15 days. the learned author shri mulla in his civil procedure code, 14th edition, on page 1373 has stated as :it may therefore be verified by a person who holds a general power of attorney from the decree-holder, notwithstanding that the decree-holder may be residing within the jurisdiction of the court, where the application is made by a person, other than the decree holder, all that is necessary is that the court should be satisfied that such person is acquainted with the facts of the case.orderkulkarni, j.1. this is a revision by judgmeat-debtor-1 against the order dated 20-7-1984 passed by the munsiff, ankola, in execution case no. 17/1981 ordering judgment-debtors-1 to 3 to pay the decretal amount in three equal monthly instalments and on failure to pay the decretal amount as directed, judgment-debtors-1 and 2 shall be kept in civil prison for 15 days.2. the learned counsel shri ramachandra submitted that the execution petition had been signed and verified by the counsel for the decree holder and that it was not signed and verified as required by order 21 rule 11(2) c.p.c. order 21 rule 11 (2) c.p.c. reads as :--'save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant, or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, etc., etc.'therefore the execution petition should be signed either by the decree holder or by some one else who is acquainted with the facts of the case. the learned author shri mulla in his civil procedure code, 14th edition, on page 1373 has stated as :-'it may therefore be verified by a person who holds a general power of attorney from the decree-holder, notwithstanding that the decree-holder may be residing within the jurisdiction of the court, where the application is made by a person, other than the decree holder, all that is necessary is that the court should be satisfied that such person is acquainted with the facts of the case.'the lawyer engaged cannot be said to be a person acquainted with the facts of the case. at the most he would have derived the knowledge from his client. he cannot be considered to be a person having personal knowledge in the matter. therefore the lawyer, in my opinion, will not come within the phraseology 'by some other person proved to the satisfaction of the court to be acquainted with the facts of the case'. therefore, the institution of the execution petition at its threshold itself is not in consonance with law. further rule 11a of order 21 c.p.c. requires that whenever an application is made for the arrest and detention in prison of the judgment-debtor, it shall state, or be accompanied by an affidavit stating the grounds on which arrest is applied for. arrest is a very serious relief. it may not be proper unless the execution is supported by an affidavit, for the court to consider the request for arrest and detention. therefore the execution petition at its threshold suffers from serious infirmities and illegalities as pointed out above. therefore whatever has taken place subsequent thereto, cannot be sustained in law at all.3. therefore the order impugned in this revision is set aside in entirety. the revision is allowed. the execution petition is sent back to the court below for getting it verified by a competent person as mentioned in order 21 rule 11 (2) c.p.c. and for taking the affidavit of a person as laid down by rule 11a of order 21 c.p.c. the court below after issuing notices to the parties or their advocates, may proceed with the matter in the light of the directions given above.

Judgment:
ORDER

Kulkarni, J.

1. This is a revision by Judgmeat-debtor-1 against the order dated 20-7-1984 passed by the Munsiff, Ankola, in Execution Case No. 17/1981 ordering Judgment-debtors-1 to 3 to pay the decretal amount in three equal monthly instalments and on failure to pay the decretal amount as directed, Judgment-debtors-1 and 2 shall be kept in civil prison for 15 days.

2. The learned Counsel Shri Ramachandra submitted that the Execution Petition had been signed and verified by the Counsel for the decree holder and that it was not signed and verified as required by Order 21 Rule 11(2) C.P.C. Order 21 Rule 11 (2) C.P.C. reads as :--

'Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant, or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, etc., etc.'

Therefore the Execution Petition should be signed either by the decree holder or by some one else who is acquainted with the facts of the case. The learned author Shri Mulla in his Civil Procedure Code, 14th Edition, on page 1373 has stated as :-

'It may therefore be verified by a person who holds a general power of attorney from the decree-holder, notwithstanding that the decree-holder may be residing within the jurisdiction of the Court, Where the application is made by a person, other than the decree holder, all that is necessary is that the Court should be satisfied that such person is acquainted with the facts of the case.'

The lawyer engaged cannot be said to be a person acquainted with the facts of the case. At the most he would have derived the knowledge from his client. He cannot be considered to be a person having personal knowledge in the matter. Therefore the lawyer, in my opinion, will not come within the phraseology 'by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case'. Therefore, the institution of the Execution Petition at its threshold itself is not in consonance with law. Further Rule 11A of Order 21 C.P.C. requires that whenever an application is made for the arrest and detention in prison of the Judgment-debtor, it shall state, or be accompanied by an affidavit stating the grounds on which arrest is applied for. Arrest is a very serious relief. It may not be proper unless the execution is supported by an affidavit, for the Court to consider the request for arrest and detention. Therefore the execution petition at its threshold suffers from serious infirmities and illegalities as pointed out above. Therefore whatever has taken place subsequent thereto, cannot be sustained in law at all.

3. Therefore the order impugned in this revision is set aside in entirety. The revision is allowed. The execution petition is sent back to the Court below for getting it verified by a competent person as mentioned in Order 21 Rule 11 (2) C.P.C. and for taking the affidavit of a person as laid down by Rule 11A of Order 21 C.P.C. The Court below after issuing notices to the parties or their advocates, may proceed with the matter in the light of the directions given above.